State ex rel. Simmons v. White, No. 75839

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPRICE
Citation866 S.W.2d 443
Decision Date23 November 1993
Docket NumberNo. 75839
PartiesSTATE ex rel. Michael D. SIMMONS, Petitioner, v. Carl WHITE, Supt., A.C.C., Respondent.

Page 443

866 S.W.2d 443
STATE ex rel. Michael D. SIMMONS, Petitioner,
v.
Carl WHITE, Supt., A.C.C., Respondent.
No. 75839.
Supreme Court of Missouri,
En Banc.
Nov. 23, 1993.
Rehearing Denied Dec. 21, 1993.

Page 444

James Lowery, Columbia, for petitioner.

Jeremiah W. (Jay) Nixon, Atty. Gen., John Simon, Asst. Atty. Gen., Jefferson City, for respondent.

ORIGINAL PROCEEDING IN HABEAS CORPUS

PRICE, Judge.

Petitioner Michael D. Simmons obtained a writ of habeas corpus from this Court on June 29, 1993, solely for the purpose of reviewing his sentencing as a persistent offender under § 577.023.1(2), RSMo 1986. 1 Simmons alleges that the trial court violated his right to be free from double jeopardy by setting aside a judgment and sentence entered upon a guilty plea, by allowing amended indictments and a second guilty plea, and by entering a new judgment and sentence. Because a circuit court loses jurisdiction over a criminal case after judgment and sentencing, we hold that Simmons' initial conviction and sentencing stands, that the subsequent proceedings were a nullity, and that Simmons has not suffered double jeopardy. We further hold that Simmons' failure to raise his present points on appeal or pursuant to Rule 24.035 precludes review by habeas corpus because they do not raise a jurisdictional issue or an issue of manifest injustice resulting from rare and extraordinary circumstances and warranting the relief requested.

I.

Prior to the matters at hand, Simmons had three convictions for driving while intoxicated: October 3, 1988; December 14, 1988; and August 9, 1989. This writ arises out of two more charges of driving while intoxicated: No. CR491-1396FX, November 4, 1991; and No. CF492-630FX, May 22, 1992.

In each of the two charges here at issue, the state sought Simmons' conviction as a persistent offender pursuant to § 577.023.1(2), RSMo 1986. The state initially alleged two of the three prior convictions in each charge. On July 10, 1992, Simmons pleaded guilty to the two charges. On August 18, 1992, he was sentenced to two five-year prison terms, to be served concurrently.

On August 24, 1992, the state filed amended informations alleging the additional prior conviction of driving while intoxicated that had occurred on December 14, 1988. This was apparently an effort by the state to comply with State v. Stewart, 832 S.W.2d 911, 913 (Mo. banc 1992), which was handed down June 30, 1992, and which held that the state must allege three prior convictions of driving while intoxicated in order to convict a person as a persistent offender.

On August 25, 1992, the court set aside the July 10 conviction and the August 18 sentencing ("first conviction and sentencing"). Petitioner again pleaded guilty, and the court

Page 445

entered the same sentence of two five-year terms, to be served concurrently ("second conviction and sentencing"). Simmons was advised by his attorney at the second conviction and sentencing "that he should go ahead and plead guilty to the now newly filed 'Amended Informations' which had been filed the day before because of Mr. Simmons' desire to later petition the Court for probation after serving 120 days of his sentences."

II.

Simmons raises three points by his request for a writ of habeas corpus. First, he alleges that the second hearing violated his constitutional right against double jeopardy. Second, he alleges that under State v. Stewart, he could not be sentenced as a persistent offender since the state only alleged two prior convictions at the first hearing and the second hearing was unconstitutional. 2 Third and finally, Simmons alleges that his failure to assert a claim for post-conviction relief under Rule 24.035 does not preclude him from now asserting a claim in habeas corpus.

A.

We need not reach the double jeopardy issues raised by Simmons because everything that occurred after his first sentencing is a nullity. In State ex rel. Wagner v. Ruddy, 582 S.W.2d 692, 695 (Mo. banc 1979), this Court clearly held that once judgment and sentencing occur in a criminal proceeding, the trial court has exhausted its jurisdiction. It can take no further action in that case except when otherwise expressly provided by statute or rule. See, for example, Rule 24.035, Rule 29.15 and § 217.775, RSMo 1986. Thus, the setting aside of the first conviction and sentencing and the entering of the second conviction and sentencing are void. The first conviction and sentencing stand.

B.

Simmons' second and third issues are interdependent. They raise the scope of review available under habeas corpus to a person who has failed to pursue appellate and post-conviction procedures to contest his or her judgment and sentencing.

At common law, a final judgment by a court of competent jurisdiction was immune from challenge by application for a writ of habeas corpus. Ex parte Watkins, 28 U.S. (3 Pet.) 193, 203, 7 L.Ed. 650 (1830); Ex parte Dixon, 330 Mo. 652, 52 S.W.2d 181, 182 (Mo. banc 1932). The common law writ was directed to the custodian of the prisoner and merely required the custodian to show the basis on which the prisoner was being held. See Ex parte Watkins, 28 U.S. (3 Pet.) at 195; Ex parte...

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101 practice notes
  • State ex rel. Clemons v. Larkins, No. SC 90197
    • United States
    • United States State Supreme Court of Missouri
    • November 24, 2015
    ...procedurally barred claims "in circumstances so rare and exceptional that a manifest injustice results." State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc 1993) ; see also State ex rel. Engel v. Dormire, 304 S.W.3d 120, 125 (Mo. banc 2010). Mr. Clemons seeks to overcome the proc......
  • Ferguson v. Dormire, No. WD 76058.
    • United States
    • Court of Appeal of Missouri (US)
    • November 5, 2013
    ...at 213). In other words, “habeas corpus is not a substitute for appeal or post-conviction proceedings.” State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc 1993). A defendant who fails to raise a challenge to his conviction on direct appeal or in a timely post-conviction proceedin......
  • Sweet v. Delo, No. 96-2581
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 9, 1997
    ...known to the petitioner at the time he filed his Rule 29.15 motion. See Reese, 94 F.3d at 1181 (citing State ex rel. Simmons v. White, 866 S.W.2d 443, 446-47 (Mo.1993) (en banc)). Sweet inveighs mightily against this conclusion, arguing that the restricted scope of review available under Ru......
  • Harris v. Adams, 4:17-cv-00842 PLC
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • December 8, 2021
    ...for reasons internal to the defense.” State ex rel. Strong v. Griffith, 462 S.W.3d 732, 738 (Mo. 2015); State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. 1993) (Missouri's established system for the review of criminal convictions provides for direct appeal and for post-conviction rev......
  • Request a trial to view additional results
101 cases
  • State ex rel. Clemons v. Larkins, No. SC 90197
    • United States
    • United States State Supreme Court of Missouri
    • November 24, 2015
    ...procedurally barred claims "in circumstances so rare and exceptional that a manifest injustice results." State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc 1993) ; see also State ex rel. Engel v. Dormire, 304 S.W.3d 120, 125 (Mo. banc 2010). Mr. Clemons seeks to overcome the proc......
  • Ferguson v. Dormire, No. WD 76058.
    • United States
    • Court of Appeal of Missouri (US)
    • November 5, 2013
    ...at 213). In other words, “habeas corpus is not a substitute for appeal or post-conviction proceedings.” State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc 1993). A defendant who fails to raise a challenge to his conviction on direct appeal or in a timely post-conviction proceedin......
  • Sweet v. Delo, No. 96-2581
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 9, 1997
    ...known to the petitioner at the time he filed his Rule 29.15 motion. See Reese, 94 F.3d at 1181 (citing State ex rel. Simmons v. White, 866 S.W.2d 443, 446-47 (Mo.1993) (en banc)). Sweet inveighs mightily against this conclusion, arguing that the restricted scope of review available under Ru......
  • Harris v. Adams, 4:17-cv-00842 PLC
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • December 8, 2021
    ...for reasons internal to the defense.” State ex rel. Strong v. Griffith, 462 S.W.3d 732, 738 (Mo. 2015); State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. 1993) (Missouri's established system for the review of criminal convictions provides for direct appeal and for post-conviction rev......
  • Request a trial to view additional results

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