State v. Crate, 34890
| Decision Date | 20 March 1973 |
| Docket Number | No. 34890,34890 |
| Citation | 493 S.W.2d 1 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Willie CRATE, Defendant-Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
W. D. Shavers, St. Louis, George G. Hubel, Michael W. Reap, Robert C. Babione Public Defender Bureau, Dept. of Welfare, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., Julian Cosentino, St. Louis, for plaintiff-respondent.
This is an appeal from a judgment of conviction entered by the Circuit Court of the City of St. Louis on a jury verdict finding defendant Willie Crate guilty of murder in the second degree. § 559.020. 1 Pursuant to § 556.280, the Second Offender Act, the court sentenced the defendant to the custody of the Department of Corrections for 20 years. Defendant appealed. He contended that the court did not have jurisdiction to assess punishment; therefore, that issue should have been submitted to the jury. We agree and reverse.
Defendant, on March 27, 1971, attended a birthday party for Mahlon Moore at 2925 Thomas Street in the City of St. Louis. At the party was Mr. Moore's daughter, Leona, who had formerly lived with defendant. But at the time of the party, Leona lived with Tommie Lewis, who also was present with his friend Walter Williams, the victim. When the party broke at 2:00 A.M., defendant, not finding his coat, threatened to take Leona's coat which he had previously bought for her. Insisting that he had bought the coat for Leona, Lewis said no one was going to take the coat, and a fight ensued between Lewis and the defendant. Williams intervened, and with Lewis' help they pushed defendant back onto a bed. As defendant struggled with the two of them, he claimed that he saw the victim trying to get a pistol from his pockets. Defendant grabbed a pistol from the waistband of Mr. Moore and pushed the gun into Lewis' stomach. Both Lewis and Williams thereafter retreated toward the front door. As Williams retreated, according to defendant, Williams tripped and as he fell his hand came up pointing at defendant. The state's evidence was that at no time did Williams have a weapon, and that Lewis and Williams were trying to open the front door at the time defendant fired. Likewise, Mr. Moore denied having a gun in his waistband or on his person at the time of the fracas. Other evidence will be given as needed.
The state concedes that there was no pleadable or provable prior conviction; therefore, the court erred by not submitting the issue of punishment to the jury. The alleged prior conviction occurred on 15 September 1970, the record showed that defendant plead guilty to the charge of carrying a concealed weapon; that the court suspended the imposition of sentence until 19 March 1971, and granted probation until that time. On 19 March 1971 probation was extended to 19 March 1972. On 7 April 1971 a minute entry of the court's record showed that the court revoked probation and placed the defendant in the custody of the sheriff to be sentenced. Defendant never was formally sentenced. The state used the above weapon charge as the prior conviction as the authority for the court to assess punishment. Nothing in the record shows that the court made the required findings of fact to support the claim that defendant had been previously convicted. In State v. Gordon, 344 S.W.2d 69 (Mo.1961), our Supreme Court said
(Emphasis added.)
The court said that § 556.280 was a penal statute to be strictly construed and was not to be extended in its application to cases which do not by the strictest construction come under its provisions. Accordingly, on the authority of the Gordon case, we find that there was no prior conviction; therefore, the court erred in ousting the jury of its right to determine both guilt and punishment. See also State v. Frey, 459 S.W.2d 359 (Mo.1970), where the court said a plea of guilty is not a conviction until a judgment has been entered. 21 Am.Jur.2d, Criminal Law, § 618, p. 568.
Although the state confessed error as to the improper use of the purported prior conviction, it now urges that the case be remanded for further proceedings to determine if the Second Offender Act was appropriately applied. To support this argument the state refers us to State v. Blackwell, 459 S.W.2d 268 (Mo.Banc.1970). In the Blackwell case the question was the insufficiency of the evidence to establish the prior conviction; but in our case the question is whether there is a conviction at all.
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U.S. v. Woods, 82-1683
...Woods cites are not applicable, however, to the situation before us. In State v. Gordon, 344 S.W.2d 69 (Mo.1961), and State v. Crate, 493 S.W.2d 1 (Mo.App., St.L.Dist.1973), the courts were dealing with the Second Offender Act, then Sec. 556.280, Revised Statutes of Missouri. That statute p......
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Turnbough v. Wyrick
...(for purposes of enhancing punishment) and thus was inherently prejudicial. We have been cited to Missouri cases, e. g. State v. Crate, 493 S.W.2d 1 (Mo.App.1973) which appear to hold that a defendant is not convicted until final judgment has been entered after imposition of sentence. What ......
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State v. Baldwin, 60481
...Therefore, the court held that such proceedings would not support the application of the Second Offender Act. Likewise, in State v. Crate, 493 S.W.2d 1 (Mo.App.1973), the court held that there was no pleadable or provable prior conviction when in an earlier proceeding imposition of sentence......
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Turnbough v. Wyrick, 76-1698
...the time already served. Missouri law is clear that a defendant is not "convicted" until after imposition of sentence. See State v. Crate, 493 S.W.2d 1 (Mo.App.1973). We recognize that the 1964 Greene County sentence cannot be retroactively validated in 1975 for purposes of supporting an ea......