State v. Crow, 56308
| Decision Date | 10 January 1972 |
| Docket Number | No. 2,No. 56308,56308,2 |
| Citation | 475 S.W.2d 71 |
| Parties | STATE of Missouri, Respondent, v. Glen CROW, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
Kelly Pool, Jefferson City, Henry Warten, Joplin, for appellant.
This is an appeal from the denial of a petition for writ of error coram nobis.
Appellant's petition attacked a 1964 judgment wherein he was sentenced under the Second Offender Act (§ 556.280, V.A.M.S.) to ten years for burglary and five years for stealing. The ground for relief asserted in the petition is that a prior conviction for stealing chickens in the nighttime, proved as a basis for applying the Second Offender Act, was void under the case of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, because it disclosed on its face that appellant was not represented by counsel at the time of the judgment and sentence therein. The trial court, without conducting an evidentiary hearing or appointing counsel, overruled appellant's petition on the ground that all matters asserted therein had been adjudicated adversely to the appellant on prior motions or appeals. We reverse and remand.
At the outset, the state asserts that appellant should have sought relief under Supreme Court Rule 27.26, V.A.M.R. rather than by petition for writ of error coram nobis. This contention is based on the assumption that appellant, at the time of the filing of this proceeding, was serving the sentence which he attacked. However, information subsequently furnished by the Attorney General discloses that appellant had been released on commutation of this sentence prior to the institution of this proceeding and coram nobis is an appropriate remedy. State v. Stodulski, Mo., 298 S.W.2d 420.
The state urges in its brief that the issue now presented has been tried, considered and adjudicated previously. It refers particularly to what this court said on motion for rehearing in State v. Crow, Mo., 388 S.W.2d 817, 822. However, we have checked that and other proceedings as shown by records in this court, and without detailing these various cases and what they involve, we find that the issue now raised has not been decided. Accordingly, we conclude that the order of the trial court overruling the petition on the basis that the grounds asserted therein had been decided previously must be reversed and the cause remanded for a hearing on the issue presented. 1 At that time both sides will be afforded an opportunity to present evidence as to whether appellant had counsel in connection with the judgment and sentence for stealing chickens in the nighttime, and if he did not, whether he knowingly and intelligently waived such counsel.
Since this case is being remanded for hearing, we deem it appropriate to refer to another question which ought to be resolved on remand. The information charging appellant in the burglary and stealing case actually alleged two prior convictions as well as the offenses of burglary and stealing. One prior conviction was for stealing chickens in the nighttime, the case in which appellant now contends that he did not have counsel. The other prior conviction was for attempted jailbreak in 1943. If this later...
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Howard v. State, 9371
...the sentence assessed has been served. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248, 257(17) (1954); State v. Crow, 475 S.W.2d 71, 72(1) (Mo.1972); Laster v. State, supra, Mo., 461 S.W.2d at 840(1). It is apparent the trial court, without having an evidentiary hearing o......
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Crow v. State
...and stealing sentence. 2 Upon denial by the trial court, appellant's third appeal was filed. On review the Supreme Court (State v. Crow, Mo., 475 S.W.2d 71), held appellant was entitled to appointed counsel and an evidentiary hearing on his allegation he was not represented by counsel at hi......
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McCormick v. State, 35869
...Defendant's use of coram nobis as the vehicle for attacking the validity of a sentence already served is correct. State v. Crow, 475 S.W.2d 71 (Mo.1972); Stoner v. State, 507 S.W.2d 80 (Mo.App.1974). But the defendant has the burden of proof for relief by the preponderance of the evidence t......