State v. Arnold
Citation | 419 S.W.2d 59 |
Decision Date | 09 October 1967 |
Docket Number | No. 52525,No. 1,52525,1 |
Parties | STATE of Missouri, Respondent, v. George L. ARNOLD, Appellant |
Court | United States State Supreme Court of Missouri |
Thompson Mitchell, Douglas & Neill and Joseph P. Logan, St. Louis, for appellant.
Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
HIGGINS, Commissioner.
Appeal from order denying motion to withdraw guilty plea under Criminal Rule 27.25, V.A.M.R., considered as proceeding to vacate sentence under Criminal Rule 27.26, V.A.M.R. State v. Harris, Mo., 382 S.W.2d 642, 643.
By information filed September 24, 1965, Cause 1854--N was commenced, and it was charged that Morris Watson and George L. Arnold did feloniously and unlawfully and by means of deceit obtain a certain narcotic drug, Dilaudid tablets, by uttering, offering and passing as true and genuine a certain false prescription to Mack Gasaway, a druggist.
On September 29, 1965, appellant appeared in court in person and by his court-appointed attorney, Joseph Noskay (Public Defender), and entered a plea of not guilty.
On October 8, 1965, appellant appeared in person and with his retained counsel, Curtis C. Crawford.
On December 27, 1965, appellant appeared in person 'and by his attorney, Joseph Noskay, standing in for Curtis C. Crawford, attorney for the defendant.'
On October 26, 1966, appellant filed his motion to set aside plea of guilty. The grounds for his motion are, in substance, (1) that the court erred in accepting his plea because there was no determination that it was made voluntarily and was in fact made equivocally; (2) that he was misled by the court in chambers in unreported matters relating to the sentence he might draw if a plea was entered; (3) that it was error to sentence him in the absence of his retained lawyer. The motion was denied November 14, 1966, and this appeal resulted.
The first charge is dispositive of this appeal and requires a reversal of the order denying the motion to vacate.
Criminal Rule 25.04, V.A.M.R., provides that the court and, under Criminal Rule 27.25, V.A.M.R., 'to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.' Exercise of this latter provision is discretionary with the trial judge and the action of the judge should not be overthrown except for an abuse of that judicial discretion. State v. Parker, Mo., 413 S.W.2d 489, 493--494(2--7); State v. Skaggs, Mo., 248 S.W.2d 635, 636(1); State v. Reynolds, 355 Mo. 1013, 199 S.W.2d 399, 402(1); and see also State v. Hodges, Mo., 383 S.W.2d 551.
This case requires application of the exception. State v. Blaylock, Mo., 394 S.W.2d 364, involved the same judge, the same 'stand-in' attorney, and nearly identical, yet more persuasive, proceedings. In that case the following transpired at the time the plea of guilty was entered:
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