State v. Hegwood
| Decision Date | 12 June 1967 |
| Docket Number | No. 52646,No. 2,52646,2 |
| Citation | 415 S.W.2d 788 |
| Parties | STATE of Missouri, Respondent, v. Joe HEGWOOD, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
Joe Hegwood, Affiant, pro se.
Defendant appeals from an order overruling his motion to vacate judgment and sentence pursuant to Supreme Court Rule 27.26, V.A.M.R.
Defendant entered pleas of guilty to two charges pending in the Circuit Court of McDonald County on August 17, 1964. On August 20, 1964, he was sentenced in both cases. One charge was for issuing a bogus check and on it he received a sentence of two years. It is not involved in this proceeding under Rule 27.26.
The other plea of guilty was in a case in which the information filed by the prosecuting attorney recited, in part, as follows: '* * * on or about the 16th day of July, 1964, one Joe Hegwood did then and there with specific intent, knowingly, intentionally, maliciously, unlawfully, feloniously, deliberately, on purpose and with malice aforethought, make an assault in and upon one J. M. Ralston, who was then and there the owner and operator of M--A State Line Liquor Store, and who was then and there in charge of the money, effects and property of said M--A State Line Liquor Store, by means of a dangerous and deadly weapon, to-wit: a 12 gauge dobel (sic) barrel shot gun; and Six Hundred Sixty-One Dollars ($661.00), good and lawful money of the United States of America, the property of the said J. M. Ralston, engaged in business under the name of M--A State Line Liquor Store, from the person and in the presence and against the will of the said J. M. Ralston, then and there by means of and by use of said dangerous and deadly weapon, the shot gun, and by putting him, the said J. M. Ralston, in fear of some immediate injury to his person, feloniously did rob, steal, take and carry away, with the intent then and there to permanently deprive the owner of the use thereof, * * *.' On that plea of guilty, the defendant was sentenced to life imprisonment under supervision of the Department of Corrections.
Defendant's pro se motion to vacate the judgment and sentence made, in substance, the following allegations: (1) That the information under which he was prosecuted and sentenced was illegal in that it improperly joined in one information charges of assault and armed robbery, not permitted in a single information, and that the judgment entered thereon was insufficient, and (2) that the first opportunity he had to consult with his court appointed counsel was on August 20, 1964, the date he entered a plea of guilty, and that counsel at that time advised him to plead guilty on the basis that he would be able to obtain a parole in a couple of years, and that if he did not plead, he would never receive parole consideration, and that further the attorney apparently had failed to investigate the sufficiency of the information, and that he pleaded guilty as a result of 'such misadvisement by his court appointed attorney.'
The trial court held an evidentiary hearing on defendant's motion to vacate the judgment and sentence. The defendant was present and testified. He complains on appeal that the trial court erred in no appointing counsel to represent him in connection with his motion to vacate, but at that time our rules did not require appointment of such counsel and this court has held that appointment of counsel on a motion to vacate under Rule 27.26 was not required. State v. Pope, Mo., 411 S.W.2d 212; State v. Herron, Mo., 376 S.W.2d 192.
We hold that the information on which defendant was prosecuted and sentenced to life imprisonment sufficiently charged robbery in the first degree with a dangerous and deadly weapon. The language is quite similar to that in the information approved in State v. Lowe, Mo., 375 S.W.2d 52, as a sufficient charge of robbery in the first degree under §§ 560.120 and 560.135, RSMo 1959, V.A.M.S. Perhaps the information could be more artfully drawn, but it includes all of the elements of the charge and was sufficient to inform the defendant with what he was charged by the State. Furthermore, the defendant testified at the hearing on his 27.26 motion and he did not testify or claim at that time that he was misled by the information or under any misunderstanding as to the charge against him. He claims simply that the information charges assault and armed robbery, not robbery in the first degree with a dangerous and deadly weapon, and hence that the information is improper and his conviction should be reversed for that reason. In addition, at the hearing on the motion to vacate, the transcript of what occurred at the time defendant entered his plea of guilty and was sentenced was introduced. In the course of those proceedings the trial court, in the presence of the defendant, asked his attorney whether they waived the reading of the information in the charge of robbery and the attorney advised that they did. After a plea of guilty had been entered, the prosecuting attorney detailed the events in which the defendant and a companion had gone to a liquor store and had pointed a shot gun at the proprietor and directed him to open the cash register. During the proceedings, the defendant shot the proprietor and then directed the proprietor's wife to collect the money and put it in a sack, and then he forced both of them to go with him to an adjoining filling station to get the money there. Then on August 20, 1964, the defendant and his attorney again appeared before the trial judge and the court then reminded the defendant that he had entered a plea of guilty on August 17 in the case in which he was charged with armed robbery and asked him if he had any reason why sentence should not be pronounced. The defendant did not dispute the accuracy of the transcript of those proceedings, nor testify that he did not understand that he was so charged.
The information was sufficient to charge first degree robbery with a dangerous and deadly weapon. The evidence introduced on the motion to vacate discloses that it was made clear to the defendant that he was charged with robbery with a...
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