State v. Henderson
| Citation | 750 S.W.2d 507 |
| Decision Date | 29 March 1988 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Ronald E. HENDERSON, Appellant. 39699. |
| Court | Court of Appeal of Missouri (US) |
Theodore M. Kranitz of Kranitz & Kranitz, St. Joseph, for appellant.
Roger E. Combs, Asst. Pros. Atty., Albany, for respondent.
Before LOWENSTEIN, P.J., and MANFORD and NUGENT, JJ.
Appellant appeals the convictions, entered upon his pleas of guilty, for operating a motor vehicle in a careless and imprudent manner, in violation of § 304.010, RSMo 1986; for property damage in the second degree, in violation of § 569.120, RSMo 1986 1; and for endangering the welfare of a child, in violation of § 568.050, RSMo 1986.
The judgments are affirmed.
Appellant challenges his convictions and raises seven points on appeal which, in summary, charge that the trial court erred (1) in failing to dismiss the information charging appellant with operating a motor vehicle in a careless and imprudent manner because the information was insufficient; (2) in finding appellant guilty of operating a motor vehicle in a careless and imprudent manner because appellant never tendered a plea; (3) in failing to dismiss the information charging appellant with property damage in the third degree because the information was insufficient; (4) in accepting appellant's plea of guilty of property damage in the third degree because said guilty plea was not made knowingly and intelligently; (5) in failing to dismiss the information charging appellant with endangering the welfare of a child because the information was insufficient; (6) in accepting appellant's plea of guilty of endangering the welfare of a child because the trial court did not conduct a hearing to determine the accuracy of the plea; and (7) in revoking appellant's probation because appellant was denied due process of law.
The pertinent facts are as follows:
On October 26, 1986, appellant, then eighteen years old, allegedly operated a motor vehicle in a careless and imprudent manner in that he drove his vehicle off the traveled portion of U.S. Highway 136. On the same day, and as a part of the same incident, appellant allegedly caused property damage in that, upon driving his vehicle off the roadway, the vehicle made some ruts in the rain-soaked, sodded right-of-way area adjacent to the highway.
Appellant was charged with these offenses by way of separate informations. The information in case no. CR486-87M charges that the defendant, in violation of Section 304.015, RSMo, 2 committed a misdemeanor ... in that on or about the 26th day of October, 1986, at the County of Gentry, State of Missouri, did then and there willfully and unlawfully while driving and operating a certain motor vehicle, to-wit: a 1982 Ford Pickup, over and upon U.S. Highway No. 136, a public highway of the State of Missouri, in a careless and imprudent manner in that he did drive and operate said motor vehicle off of the traveled portion of said roadway.
The information in case no. CR486-88M charges
that the [defendant], in violation of Section 569.120, RSMo, committed the class B misdemeanor of property damage in the third degree, ... in that on or about October 26, 1986, in the City of Albany, County of Gentry, State of Missouri, the [defendant] knowingly damaged the right of way of U.S. Highway No. 136 in two (2) locations, which property was owned by the State of Missouri, by the operation of a certain Ford pickup off of the roadway through a rain soaked sodded right of way area adjacent to the highway at a time when said area was soft and susceptible to damage by the operation of said vehicle.
On December 3, 1986, a hearing was conducted in associate circuit court before the Honorable Harold V. Davis. Appellant appeared without counsel. The court informed appellant that he was charged with property damage in the third degree in violation of § 569.120, RSMo. Appellant informed the court that he wished to plead guilty. The court thoroughly questioned appellant as to whether appellant understood his right to counsel and right to trial, whether appellant's plea was made knowingly and intelligently, and whether appellant understood the consequences of a guilty plea.
During this hearing, the only references to the charge of careless and imprudent driving were made in the following manner:
The docket sheet for case no. CR486-87M (C and I) has a December 3, 1986, entry which reads:
whereupon parties announce and a plea bargain is submitted in companion case CR486-88M [damage to property, third degree]. Defendant is placed on probation for a period of six months ... 3
As for case no. CR486-88M () the docket sheet has a December 3, 1986, entry which states that appellant knowingly and voluntarily entered a plea of guilty, which the court accepted. The court suspended imposition of sentence and placed appellant on probation, setting forth the conditions of that probation. The conditions of appellant's probation included a curfew.
On February 23, 1987, a warrant for arrest was issued for appellant and charged that appellant had violated his probation. Appellant was arrested that day and was later released on bond.
On March 3, 1987, the prosecuting attorney filed with the circuit court a Motion to Revoke Probation, stating that appellant had been on probation in the property damage case, and that he violated the conditions of his probation by remaining out past his curfew on the night of February 22, 1987.
A hearing was conducted on April 29, 1987, on the state's Motion to Revoke Probation. On this same day, appellant was charged by information with endangering the welfare of a child, in violation of § 568.050, RSMo, in that on or about February 22, 1987, appellant "knowingly encouraged, aided or caused [M.F.], a child less than seventeen years old, to engage in conduct which tended to cause such child to come within the provisions of subdivision (2), Section 211.031, RSMo." (Case no. CR486-45M)
During the revocation hearing, appellant appeared and was represented by counsel. The court began by stating that this was a revocation of probation hearing under case no. CR486-88M (), and that there was a companion case no. CR487-45M () for which there had been no arraignment or other hearing. Appellant waived the reading of the charge in case no. CR487-45M and the proceedings commenced.
The prosecuting attorney announced the following arrangement:
MR. COMBS: Yes, sir. There have been considerable discussions between the Defense attorney and myself regarding both matters here, in the motion to revoke probation and also the new charge which has been filed.
I believe that there has been a plea bargain entered into, which, essentially will call for among other things, the continuation of the Defendant's probation in Case No. CR486-88M through June 3, 1988. It's my understanding that the Defendant intends to plead guilty to the new charge CR487-45M, receive a suspended imposition of sentence and be placed upon probation to run concurrently with the probation in Case CR486-88M.
* * *
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Additionally, on Case CR487-45M, I've recommended and I understand the Defendant agrees as part of the agreement that he spend seven days shock time in the Gentry County Jail, to be served on Sundays, commencing at 6:00 p.m. on Saturday evening and ending at 6:00 p.m. on Sunday evening and that he be required to pay the costs incurred for his jail board bill which I didn't recall if it was $10 or if we were up to $12 now, whichever that is.
Appellant then entered his plea of guilty.
The court then examined appellant to determine whether his plea of guilty to case no. CR487-45M was made knowingly, voluntarily and intelligently. The court then accepted the plea agreement, suspended imposition of sentence and placed appellant on probation. The conditions of appellant's new probation included seven days shock jail time to be served by appellant from Saturday, 6:00 p.m. until Sunday, 6:00 p.m. for seven consecutive weekends. Apparently, appellant's probation in case no. CR486-88M () was not revoked, but was extended and to run consecutively with his probation in case no. CR487-45M (endangering).
Appellant successfully served the first four days of his shock jail time, but on the Thursday before the fifth weekend, appellant checked himself into an adolescent treatment center for...
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