State v. Clemmons, 52317
| Decision Date | 12 June 1967 |
| Docket Number | No. 52317,No. 1,52317,1 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Fred Lee CLEMMONS, Defendant-Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
William R. Hirsch, Clayton, for appellant.
WELBORN, Commissioner.
The notice of appeal in this case describes the appeal as one 'from the Judgments, Verdicts and Sentencing of June 10, 1966, as later amended, in the above (four separate) causes; from order denying Motion for Adducement of Additional Testimony and Motion to Withdraw Guilty Plea in Cause 1396--M on June 10, 1966; from order overruling Motion of Defendant to Vacate and Set Aside Judgment and Sentence, Dismissal of Indictments and Retrial, Etc., entered in this action on June 20, 1966.' The question immediately arises whether or not a single appeal may properly be taken from such a multiplicity of judgments and orders.
Fred Lee Chemmons was charged, by two separate indictments filed September 29, 1964, in the St. Louis Circuit Court, with stealing over $50.00 by means of deceit. On March 23, 1965, a third indictment was filed, charging Chemmons with 'obtaining money by false pretenses' and on October 20, 1965, a fourth indictment was filed, charging him with stealing an automobile. All charges apparently arose from Clemmons' operation of a used car business.
Clemmons was arraigned on the first two indictments numbered 1396--M and 1397--M and pleaded not guilty. On April 27, 1965, he appeared, accompanied by his attorney, and withdrew his plea of not guilty in No. 1396--M and entered a plea of guilty. Sentencing was deferred until June 14, 1965, and a 'pre-sentence investigation ordered.' From the remarks of the trial judge at subsequent proceedings recorded in the transcript here, it appears that the court was attempting to allow the defendant to make restitution. Sentencing was further deferred and had not been imposed when the fourth indictment was filed in October, 1965.
On October 14, 1965, cases numbered 1397--M and 565--N (the third indictment) were set for 'jury waived trial' on October 19, 1965, 'as per memo filed, signed by James E. Darst, Assistant Circuit Attorney, and Morris M. Hatchett, attorney for the defendant.'
After a further continuance, cases numbered 1397--M, 565--N and 2097--N (the fourth indictment) were heard on November 5, 1965, as 'jury waived trials.' On November 12, 1965, the trial judge entered findings of guilt in all three cases and indicated that a sentence of three years' imprisonment would be imposed in each case. The transcript on appeal shows that sentencing in the three cases was set for December 3, 1965. However, there were apparently continued moves to enable defendant to make restitution and the next entry, as shown by the transcript here, was June 10, 1966. At that time, Morris M. Hatchett withdrew as attorney for defendant and William Hirsch entered his appearance in such capacity and filed, on behalf of the defendant, a 'MOTION OF DEFENDANT FOR ADDUCEMENT OF ADDITIONAL TESTIMONY, PRESENTATION OF FURTHER EVIDENCE, OR, ALTERNATIVELY, FOR TRIAL OF THE WITHIN CAUSES BY JURY.' Also filed on behalf of defendant was a 'MOTION TO EXTEND OR ENLARGE TIME FOR FILING NEW TRIAL MOTION.' Both motions were overruled and the court proceeded to sentence the defendant in all four cases.
In Number 1396--M, in which the guilty plea had previously been made, the sentence imposed was three years. Upon the judge's announcement of the sentence, defendant's attorney stated that the defendant decided to withdraw the plea, but the court refused to permit him to do so. Three-year sentences were imposed in each of the other three cases, to run consecutively.
On June 16, 1966, a motion was filed on behalf of defendant, captioned: 'MOTION OF DEFENDANT TO VACATE AND SET ASIDE JUDGMENT AND SENTENCE, FOR DISMISSAL OF INDICTMENT RE-TRIAL AND OTHER RELIEF.'
The motion attacked the findings of guilt in the three court-tried cases on the grounds that the defendant was not present when the court, on November 12, 1965, made its memoranda findings of guilt; that the waiver of jury trial did not comply with Criminal Rule 26.01(b), V.A.M.R.; that the court failed to make findings of fact and declarations of law, required by Criminal Rule 26.01(c), V.A.M.R.; that sentencing was unreasonably delayed; that the court's findings were not entered on the...
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Holt, Application of
...Appeal out of time under R. 28.07. The timely filing of an adequate Notice of Appeal is a jurisdictional requirement (State v. Clemmons, 416 S.W.2d 68, 70-71 (Mo.1967)), and it has often been held that there can be no valid filing of a Notice of Appeal until the docket fee has been paid or ......
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State v. Dean
...a prerequisite to appellate-court jurisdiction is not met, the appellate court must raise the issue sua sponte. See State v. Clemmons, 416 S.W.2d 68, 70-71 (Mo. 1967). Such an issue appears here; accordingly, we dismiss the appeal. Under Rule 29.11(b) and (e),2 Defendant had the right to fi......
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State v. Morse, 9914
...motu since an adequate and timely filing of a notice of appeal is a prerequisite to our exercise of jurisdiction. State v. Clemmons, 416 S.W.2d 68, 70--71(1) (Mo.1967). The notice of appeal having been untimely filed, this court has no appellate jurisdiction (State v. Hayes, 394 S.W.2d 346-......
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State v. Wilson
...a prerequisite to appellate court jurisdiction is not met, the appellate court must raise the issue sua sponte. See State v. Clemmons, 416 S.W.2d 68, 70-71 (Mo. 1967). Because we lack jurisdiction in this case, the appeal must be dismissed. Under Rule 29.11(b) and (e),1 Defendant had the ri......