State v. Byrnes, 11986

Decision Date01 June 1981
Docket NumberNo. 11986,11986
Citation619 S.W.2d 791
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Robert John BYRNES, Defendant-Appellant.
CourtMissouri Court of Appeals

John D. Ashcroft, Atty. Gen., Brian P. Seltzer, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Louis J. Nolan, Johnson & Sweeney, Springfield, for defendant-appellant.

PREWITT, Presiding Judge.

A jury found defendant guilty of first degree robbery, § 569.020, RSMo 1978, and assessed his punishment at 20 years imprisonment. The trial judge, after a sentencing hearing, sentenced him to 25 years imprisonment as a "persistent offender". §§ 557.036, 558.016, RSMo 1978.

Defendant's first point contends that the trial court erred in allowing the state to amend the information to charge him with being a persistent offender because § 558.016, RSMo 1978, "does not provide for such a charge in connection with a class 'A' felony." He contends that the amendment to this section, Laws of Missouri, 1980, p. 495, effective August 13, 1980, does not apply because the offense occurred before its effective date. However, the result is the same whether or not that amendment applies. Even before the amendment the trial judge could impose upon a persistent offender who "has been found guilty of a class A felony, ... any sentence authorized for a class A felony." § 557.036-3(2)(b), RSMo 1978. We do not find §§ 557.036 and 558.016 to be in conflict as defendant contends. Section 558.016 does not prohibit the trial judge from sentencing a defendant found guilty of a class A felony as a persistent offender but, before amended, referred only to the sentencing of class B, C or D felonies. Under § 557.036-3(2)(b) there is authorization for a judge to sentence a defendant found guilty of a class A felony who is a persistent or dangerous offender. State v. Manis, 614 S.W.2d 771, 772 (Mo.App.1981). Point one is denied.

Defendant's second point contends that the trial court erred in allowing the state to amend the information after the jury returned its verdict. The state received permission to change the dates of two prior convictions referred to in the persistent offender allegations of the information. Defendant contends that under Rule 23.08, V.A.M.R., the information may only be amended "before verdict". The allegations amended here do not pertain to a jury issue but only to the judge's finding as to whether defendant was a persistent offender. Rule 23.08 provides for amendment "before verdict or finding" and this district has recently ruled in an almost identical situation that such an amendment was proper. State v. Leake, 608 S.W.2d 564, 565 (Mo.App.1980). Point two is denied.

Point three contends that the trial court erred in admitting into evidence at the sentencing hearing, certain records purporting to be from a District Court in Texas, showing a prior felony conviction of defendant. Defendant claims that these records were not properly certified under § 490.130, RSMo 1978, because the "record must bear the seal, if there is one, of the Court as placed there by the clerk of that court." The exhibit questioned contains, on an attached sheet certifying the correctness of the documents, two imprints said to be the seal of the "District Court of Travis County, Texas." Above the first signature of the clerk he states that he "affixed the seal of said Court" and below that the judge of that court certified that the signature above his was that of the clerk of the court. Below the judge's signature the clerk certified that the signature was that of the judge of that court and again stated that he has affixed the seal of the court. We do not believe that the record itself must bear the seal, as defendant is apparently arguing, as the statute only requires that the seal be "annexed" and the procedure followed here appears to be in compliance with the statute. Point three is denied.

Defendant's fourth point contends that the trial court erred in admitting into evidence ninety-nine dollars in currency taken from defendant when he was arrested approximately one hour after the robbery. He contends that this evidence "was non-probative, prejudicial and of an inflammatory nature which neither tended to prove or disprove a disputed fact in issue." A witness for the state estimated that during the...

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17 cases
  • Gilmore v. Armontrout
    • United States
    • U.S. District Court — Western District of Missouri
    • February 26, 1988
    ...the offensive matter at trial. A point raised on appeal must be based upon the theory of the objection made at trial. State v. Byrnes, 619 S.W.2d 791, 793 (Mo. Ct.App.1981). There is, however, an exception to this general rule which is known as the plain error rule. This rule provides for c......
  • State v. Wilson
    • United States
    • Missouri Court of Appeals
    • December 13, 1984
    ...The defendant's complaints concerning the form of and the certification of the documents of proof are without merit. State v. Byrnes, 619 S.W.2d 791 (Mo.App.1981); State v. Gardner, supra. The defendant's conviction of driving while intoxicated, third offense, is CROW, P.J., and HOGAN, TITU......
  • State v. Hubbard
    • United States
    • Missouri Court of Appeals
    • October 11, 1983
    ...on appeal must be based upon the theory of the objection made at trial, State v. Lang, 515 S.W.2d 507, 511 (Mo.1974), State v. Byrnes, 619 S.W.2d 791, 793 (Mo.App.1981), and because a party is not permitted to broaden the scope of his objection on appeal beyond that made at trial, State v. ......
  • State v. Berry
    • United States
    • Missouri Court of Appeals
    • April 19, 1983
    ...regarding the bribery offer by appellant, nor did appellant seek any remedial assistance from the trial court. Under State v. Byrnes, 619 S.W.2d 791, 793 (Mo.App.1981), the point is not properly preserved. Consideration of the point by this court is made subject to Rule 29.12(b) and appella......
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