State v. Campbell
| Decision Date | 09 December 1957 |
| Docket Number | No. 2,No. 46064,46064,2 |
| Parties | STATE of Missouri, Respondent, v. Paul S. CAMPBELL, Appellant |
| Court | Missouri Supreme Court |
Paul S. Campbell, pro se.
John M. Dalton, Atty. Gen., Aubrey R. Hammett, Jr., Asst. Atty. Gen., for respondent.
The defendant, a prisoner in the Missouri State Penitentiary, filed in the Circuit Court of Jackson County an application entitled 'Petition for a Writ of Error Coram Nobis' seeking to set aside his conviction of a criminal offense. The petition, filed on October 5, 1956, was taken up by the Court, considered and overruled on November 21, 1956, over the objections of the defendant. However, he did not file a motion for a new trial or rehearing. On December 10, 1956, he filed his notice of appeal and also his motion to sue as a poor person, which was sustained.
Absent a motion for new trial, the order of November 21, 1956, overruling defendant's petition, did not become final for purposes of appeal until thirty days thereafter, and the notice of appeal filed December 10, 1956, was timely. Sup.Ct.Rules 3.24 and 28.03, 42 V.A.M.S.; Section 510.370 RSMo 1949, V.A.M.S.; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55, 63; State v. Ninemires, Mo., 306 S.W.2d 527.
The transcript on appeal contains the present petition and proceedings thereon, but not the files and records of the prior criminal prosecutions. From the defendant's petition and admissions against interest in his brief and exhibits, filed pro se, we gather the essential facts on which the disposition of the appeal depends. The defendant is imprisoned under two sentences, one for life and one for a term of two years. The latter sentence was imposed January 12, 1954, pursuant to a plea of guilty to a charge of assault with intent to commit robbery. Apparently this offense was committed while the defendant was on parole from the life sentence which had been imposed some years before in Cause No. C-18046 in the Circuit Court of Jackson County. Further, it appears that defendant's parole was revoked, because he was 'readmitted' to the penitentiary and is being held under both sentences.
The difficulty of which the defendant presently complains stems from the fact that the judgment imposing the sentence of two years' imprisonment in Cause No. C-25641, in its concluding paragraph, stated: 'It is further ordered by the Court that the sentence imposed herein run concurrently with sentence imposed in cause No. C-18046.' This judgment was first attacked on November 2, 1955, when the defendant filed in the trial court a 'Motion to Set Aside Plea, Judgment and Sentence.'
A letter dated November 21, 1955, written by the trial judge to Mr. John P. Ryan, whom defendant refers to as his 'attorney of record,' reveals additional facts and the consideration given to the first motion. A copy of this letter, attached to defendant's brief, reads as follows:
'You will recollect that you represented Paul S. Campbell, who was sentenced by me on January 12, 1954, to a two-year sentence in Missouri Penitentiary on a charge of assault with intent to rob, the sentence to run concurrently with a previous sentence for life in cause No. C-18046. I later received a letter from Mr. Campbell from the Missouri State Penitentiary dated March 16, 1954, which I referred to you and to which you replied by letter to me dated May 4, 1954. No doubt the Assistant Prosecuting Attorney Mr. Ewing, you, and I all thought at the time Campbell was sentenced that the Court had jurisdiction to provide for the two-year sentence to run concurrently with his life sentence, but after you and I looked up the law, (and after Campbell had been informed at the Penitentiary) we found that under the Statute, Section 222.020, the two-year sentence could not commence to run until the expiration of the life sentence.
'A few days ago I received from the office of the Clerk in Kansas City a motion, apparently prepared at the Penitentiary, from Mr. Campbell, 'Motion to Set Aside Plea, Judgment, and Sentence'. The motion is based on the provisions of the above-mentioned Statute. I have been quite busy with our jury dockets and only today found time to look into this matter. I did locate the 1954 correspondence and find that we went into the matter quite thoroughly at that time.
'It appears to me that if you concur in the view last above expressed and so advise Mr. Campbell that he may not care to proceed with his present motion.
'I am sending a copy of this letter to Mr. John B. Ewing, Assistant Prosecuting Attorney, who handled the case for the State.'
The order overruling the motion to set aside the plea, judgment and sentence in Cause No. C-25641 is as follows:
'Now on this date, the 23rd day of January, 1956, the Court having considered defendant's 'Motion to set Aside Plea, Judgment and Sentence' filed by the defendant in this court on November 2, 1955, finds that on January 12, 1954, the defendant Paul S. Campbell appeared in person and by his attorney, John P. Ryan, withdrew his plea of not guilty theretofore entered, and upon the advice of his attorney, John P. Ryan, entered a plea of guilty to a charge of assault with intent to rob; that thereupon the Court imposed sentence and ordered and adjudged that the defendant undergo confinement in the penitentiary of the State of Missouri for and during the period of two years for said offense; that the judgment of the Court in effect as aforestated included, 'It is further ordered by the court that the sentence imposed herein run concurrently with sentence imposed in cause No. C-18,046.'
'The Court further finds that said provision above-quoted that the sentence run concurrently with the sentence in cause No. C-18,046 is contrary to law and void, and the Court further finds that said language is surplusage in the sentence and judgment of the Court in this cause, and that the sentence and judgment imposed by the...
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