State v. Gladies, 54792
| Decision Date | 13 July 1970 |
| Docket Number | No. 54792,No. 1,54792,1 |
| Parties | STATE of Missouri, Respondent, v. Clinton GLADIES, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Gene E. Voigts, First Asst. Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., for respondent.
Ronald M. Sokol, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
HOUSER, Commissioner.
Appeal from a judgment of conviction based upon a plea of guilty and from an order overruling appellant's motion to withdraw the plea of guilty filed under Criminal Rule 27.25, V.A.M.R.
Clinton Gladies was originally charged with assault with intent to rape, under § 559.190, RSMo 1959, V.A.M.S., the pertinent portions of which follow: 'Every person who shall be convicted of an assault with intent to * * * commit any * * * rape, * * * or other felony, the punishment for which assault is not hereinbefore prescribed, shall be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months, or by a fine not less than one hundred dollars and imprisonment in the county jail not less than three months, or by a fine of not less than one hundred dollars.' He originally pleaded not guilty, but later decided to plead guilty to this charge. On the day he appeared in court to change his plea from not guilty to guilty the State undertook to amend the information by interlineation by adding the words 'with malice aforethought' after the words 'did then and there unlawfully and feloniously.' The purpose was to change the charge from assault under § 559.190 to assault with malice under § 559.180, RSMo 1959, V.A.M.S. The latter section, which proscribes a more serious crime and prescribes a much graver range of punishment, provides in pertinent parts as follows: 'Every person who shall, on purpose and of malice aforethought, * * * assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to * * * ravish * * * such person, or in the attempt to commit any burglary or other felony, * * * shall be punished by imprisonment in the penitentiary not less than two years.'
After some preliminary explanations, an off-the-record colloquy, and consultation with counsel, appellant entered a plea of guilty to the information as amended. Court, counsel and appellant considered that appellant was pleading guilty to a charge under § 559.180. The court ordered a presentence investigation. Before sentence was passed appellant filed this motion to withdraw the plea of guilty on the ground of surprise, inadequate opportunity to reflect on the amendment and the possible punishment, undue haste, innocence, and that he was not in full possession of his faculties because he was still feeling the effects of an assault made upon him while in the jail. Testimony was heard. The court overruled the motion and sentenced appellant to five years' imprisonment 'for said offense of Assault with Intent to Rape with Malice Aforethought.' This appeal followed. Appellant's original brief on appeal dealt only with the point that the court erred in accepting his plea of guilty for the reasons stated in his motion, viz., surprise; insufficient time to reflect on the amendment and its consequences; failure of the court to adequately determine that the plea was voluntarily made, etc. Appellant later filed an amended brief in which he raised the point that the amended information was fatally defective for not alleging that the assault was made 'with a deadly weapon, or by any other means or force likely to produce death or great bodily harm.' This new point goes to the jurisdiction of the court. That there must be an information on file charging the defendant with the offense to which he pleads as a jurisdictional prerequisite is established by Montgomery v. State of Missouri, Mo.Sup., 454 S.W.2d 571 (May 11, 1970), and the cases cited therein. A question of jurisdiction may be raised at any stage of the proceeding. The jurisdictional point is meritorious and is completely dispositive of the appeal.
The purported amendment and subsequent proceedings were a nullity. In the first place, the State attempted by way of amendment of an information to charge an offense distinct and different from that charged in the original information. The two offenses proscribed by §§ 559.180 and 559.190 are distinct and different, both in degree and in severity and range of punishment. An amendment operating to charge an offense different from that charged in the original information is not permissible, § 545.300; Criminal Rule 24.02; ...
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State v. Holland
...degree murder was going to be submitted to the jury. There was no violation of due process here. State v. Goddard, supra. State v. Gladies, 456 S.W.2d 23 (Mo.1970) and Montgomery v. State, 454 S.W.2d 571 (Mo.1970) have been offered for the maxim that a proper charge is an essential ingredie......
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State v. Granberry
...It also should be noted that there can be no waiver of formal and sufficient accusation. Montgomery v. State, supra; State v. Gladies, 456 S.W.2d 23 (Mo.1970); 21 Am.Jur.2d Criminal Law § 390 (1965): 'A criminal prosecution necessarily implies the existence of an accusation charging the com......
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...is so because the trial court lacks subject matter jurisdiction to render a conviction for a crime that is not charged. State v. Gladies, 456 S.W.2d 23, 25 (Mo.1970); Montgomery v. State, 454 S.W.2d 571, 574-75 The principal opinion does not deny that this jurisdictional defect exists. Inst......
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...an offense different from that charged in the original information is not, of course, permissible. Rule 23.08; § 545.300; State v. Gladies, 456 S.W.2d 23, 25 (Mo.1970). For whatever reason, the State amended the first count of its information three times. On September 11, 1987, the defendan......