State v. Burroughs
| Decision Date | 16 August 1977 |
| Docket Number | No. 38201,38201 |
| Citation | 559 S.W.2d 42 |
| Parties | STATE of Missouri, Respondent, v. Robert Gene BURROUGHS, Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., James A. Roche, Jr., Asst. Circuit Atty., St. Louis, for respondent.
Robert C. Babione, Public Defender, Mary Louise Moran, Asst. Public Defender, St. Louis, for appellant.
A jury found defendant Robert Burroughs guilty of first degree robbery. Sections 560.120 and 560.135, RSMo., 1969, VAMS. After denying his motion for a new trial the court, under the Second Offender Act, announced it was sentencing defendant to 15 years' imprisonment to run concurrently with a three-year sentence recently imposed on another charge. The court then set this aside and in its formal judgment ordered the two sentences to run consecutively. Defendant filed an amended motion for a new trial without challenging the amended judgment; our review is therefore limited to plain error. (Rule 27.20(c)).
As said, the trial court announced a 15-year sentence to run concurrently with a three-year sentence on the prior conviction for assault. Immediately following this the court held a hearing on defendant's motion to appeal as a poor person and defense counsel mentioned there was a rape charge pending against defendant. The court digressed to question both counsel about defendant's background, and then set aside its order for concurrent sentences and formally entered judgment making the 15-year sentence run consecutively to defendant's prior three-year sentence.
The issue raised is whether it was within the trial court's power to increase the originally announced sentence.
A trial court has an inherent right to modify its judgment before it has become effective. In Ex parte Simpson, 300 S.W. 491(1, 2) (Mo.1927) it was held: "The right of the circuit judge at the same term to set aside its (prior judgment) and to enter a new judgment, before petitioner was taken to the penitentiary, is not and could not well be questioned." For widespread acceptance of this principle see cases at 24 C.J.S. Criminal Law §§ 1587(b) and 1588.
Defendant argues that in entering the formal judgment of consecutive sentences the court impermissibly considered other charged offenses. Bearing in mind that defendant relies on the plain error rule, we have examined the record and find that the trial court did not commit a manifest injustice in ordering the two sentences to run consecutively nor did the consecutive sentencing result in a miscarriage of justice.
In United States ex rel. Starner v. Russell, 378 F.2d 808(1) (1967), it was held that vacating a sentence and then resentencing does not constitute double punishment where accused has not begun serving the original sentence. We hold it was within the trial court's power to amend the original judgment when defendant was still in the court's presence and the original judgment had not been put into operation.
We deny defendant's challenge to the judgment and take up his...
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State v. McDonald
...which he believes in good faith to be justified. Id. at 766. See also, State v. Brewer, 565 S.W.2d 801 (Mo.App.1978); State v. Burroughs, 559 S.W.2d 42 (Mo.App.1977). Further, in the penalty phase of a capital murder case both parties should be given wide latitude in arguing the matter of p......
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State v. Ball
...argument the prosecutor may also draw non-evidentiary conclusions which are justified by inferences from the evidence. State v. Burroughs, 559 S.W.2d 42, 43 (Mo.App. 1977). From the state's viewpoint, the evidence developed at trial indicated that defendant was guilty of the crime charged, ......
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State v. Armbruster, 63192
...banc 1981). When the prosecutor stays within the evidence and its reasonable inferences, his argument is permissible. State v. Burroughs, 559 S.W.2d 42 (Mo.App.1977). Additionally, a prosecutor has the right to draw any inference from the evidence which he believes in good faith to be justi......
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State ex rel. Wagner v. Ruddy
...both for purposes of terminating respondent's jurisdiction and of triggering relator's right to serve notice of appeal. State v. Burroughs, 559 S.W.2d 42 (Mo.App.1977), cited by respondent, is inapposite because the initial sentence announced in that case was not entered as a judgment. Id. ......