State v. Motley

• Decision Date: 07 December 1976
• Docket Number: No. 37211,37211
• Citation: 546 S.W.2d 435
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John Patrick MOTLEY, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 435

546 S.W.2d 435

STATE of Missouri, Plaintiff-Respondent, v. John Patrick MOTLEY, Defendant-Appellant.

No. 37211.

Missouri Court of Appeals, St. Louis District, Division One.

Dec. 7, 1976.

Motion for Rehearing or Transfer Denied Feb. 16, 1977.

Newmark & Baris, Irl B. Baris, Kenneth H. Graeber, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Jefferson City, Robert M. Sommers, Asst. Attys. Gen., Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.

RENDLEN, Judge.

John Patrick Motley appeals his conviction on two counts for illegal sale of marijuana, a Schedule I Controlled Substance, under § 195.200 RSMo.1969, V. A.M.S. ¹ Having a prior controlled substance felony conviction, Motley received the minimum mandatory sentences provided in § 195.200, subsection 1(5), on each count, the sentences to run concurrently.

Defendant concedes the sufficiency of the evidence but challenges the constitutionality of pertinent portions of § 195.200. ² We have examined this contention and as hereinafter discussed, conclude jurisdiction lies in this court under Article V, Section 3, Missouri Constitution, 1945, as amended. Defendant's specific allegations are: (1) the ten year minimum sentence provided by subdivision (5) of subsection 1, and subsection 4 prohibiting 'parole, probation, suspended sentences or any other form of judicial clemency' usurp the judicial function in violation of Article II, Section 1 and Article V, Section 1 of the Missouri Constitution; and (2) the ten year sentence is excessive and disproportionate, constituting cruel and unusual punishment contrary to the mandate of Article I, Section 21 of the Missouri Constitution and the Eighth Amendment of the United States Constitution made applicable to the States by the Fourteenth Amendment.

Defendant first contends a court has inherent power to grant or deny a convicted offender probation on consideration of mitigating circumstances, citing State v. McCoy, 94 Idaho 236, 486 P.2d 247 (1971), and to restrict this power by statute constitutes an impermissible legislative usurpation of the court's prerogatives. In ruling this point it is important we consider the concepts of punishment, sentencing and probation in the broad sense as they relate to the legislative and judicial function.

In Missouri, fixing punishment for a crime defined by statute is the province of the legislature not the courts. State v. Alexander, 315 Mo. 199, 285 S.W. 984, 985(5) (1926); State v. Wheeler, 318 Mo. 1173, 2 S.W.2d 777, 779(10) (1928); see cases cited, Missouri Digest under Constitutional Law, k 70.1(10), pocket part 1976. The power to pardon is an executive power, Missouri Constitution, Article IV, Section 7.

The Missouri Supreme Court, discussing the concept of sentencing, has stated: 'In its technical legal sense the sentence generally constitutes and has the same meaning as judgment or final judgment or determination against accused in a criminal case. . . . Broadly, the term (sentence), in legal parlance, may be said to denote the action of a court of criminal jurisdiction, formally declaring to accused the legal consequences of the guilt which he has confessed or of which he has been convicted . . . (A) sentence is not, strictly speaking, the act of the court but the judgment of the law which the court is commanded to pronounce.' State v. Pruitt, 169 S.W.2d 399, 400(1) (Mo.1943); see also McCulley v. State, 486 S.W.2d 419, 423(4) (Mo.1972). The court in Ex parte Thornberry, 300 Mo. 661, 254 S.W. 1087, 1091(11) (en banc 1923), examining the court's role in the sentencing process stated: '(A) court's powers in the administration of the criminal law is limited, upon the conviction of the accused, to the imposition of the sentence authorized to be imposed.'

As to the authority of a court to suspend sentence in the absence of an express statutory provision, it has been declared the trial court has no power to indefinitely suspend the sentence, for whatever reasons. ³ Ex parte Bugg, 163 Mo.App. 44, 145 S.W. 831, 832(1) (1912); Ex parte Thornberry, supra, at 1090(8).

Trial courts are authorized in certain cases to suspend the imposition of sentence, or to parole or place defendants on probation, see § 549.061 RSMo., as amended Laws 1975, and § 549.071 RSMo., as amended Laws 1967, V.A.M.S., but this stems from statutory authorization and is not inherent to the judicial power. Cf. State ex rel. Douglas v. Buder, 485 S.W.2d 609, 610(1) (Mo. banc 1972) rev'd on other grounds 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973); Weber v. Mosley, 241 Mo.App. 727, 242 S.W.2d 273, 279(9, 10) (1951). An example of statutory proscription imposed by the legislature on the sentencing process appeared in § 556.280 RSMo.1949, the 'second offender' act. ⁴ Discussing the statute's effect in the case of a defendant tried for first degree robbery as an habitual criminal, the court in State v. Hurtt, 509 S.W.2d 14, 18(6) (Mo.1974), stated: '. . . upon the jury's finding that appellant had one prior conviction, (the court) had absolutely no discretion in sentencing appellant, but was required to impose a sentence of life imprisonment.' In Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916), these principles have been analyzed by the Supreme Court in terms of traditional concepts of separation of powers. There an accused entered a plea of guilty to a charge of embezzlement and was sentenced to five years imprisonment, the minimum mandatory punishment under the federal statute for that crime. The trial court mistakenly ordered that the sentence be suspended during the good behavior of the defendant. The Supreme Court by mandamus compelled vacation of that order as an excess of judicial authority, holding that such action by the trial court was a usurpation of the legislative power and if permitted 'it would come to pass that the possession by the judicial department of power to permanently refuse to enforce a law would result in the destruction of the conceded powers of the other departments, and hence leave no law to be enforced.' 242 U.S. at 42, 37 S.Ct. at 74. Our Supreme Court in Ex parte Thornberry, supra at 1090--91(11), favorably citing that decision, stated:

The reason for the rule is found in the nature of our systems of government, national and state. The power to grant reprieves and pardons and that to sentence for crime being distinct and different in their origin and nature, their exercise has been kept separate and distinct, the one having been confided to the executive and the other to the judicial department. The recognition of the power of a court to suspend a sentence indefinitely or to stay its execution would be to allow the judicial department to usurp the power and exercise one of the functions of the executive department. This is upon the well-grounded theory that a court's powers in the administration of the criminal law is limited, upon the conviction of the accused, to the imposition of the sentence authorized to be imposed.

Thus, the legislature by statutory enactment describes crimes and prescribes punishment and for a court to refuse imposition of prescribed penalties by the device of indefinite suspension of sentence or similar means, would constitute judicial usurpation of legislative power. It is clear that contrary to defendant's contention there has been no usurpation of judicial authority here; indeed the opposite would occur if a court on conviction refused imposition or ordered indefinite suspension of sentence. Plaintiff's Point I is without merit.

Defendant next contends the ten year concurrent sentences imposed by § 195.200 are so excessive and disproportionate to the offenses charged as to constitute cruel and unusual punishment violative of Article I, Section 21, Missouri Constitution and the Eighth and Fourteenth Amendments to the United States Constitution. As previously discussed, establishing the range of punishment for crimes is a legislative, not a judicial function, State v. Alexander, 315 Mo. 199, 285 S.W. 984 (1926), and a sentence when imposed within the limits provided by an otherwise constitutional statute, is not to be considered excessive. State v. Alexander, supra at 985(4); State v. Grimm, 461 S.W.2d 746, 754(7) (Mo.1971). Stated somewhat differently, "The definition and punishment of crime in general is a legislative function upon which the courts may not encroach' . . . and so long as constitutional limitations are not infringed, the will of the legislature in this respect is absolute.' State v. Stock, 463 S.W.2d 889, 895(8) (Mo.1971).

The Missouri Supreme Court in Stock, supra, and in State v. Burrow, 514 S.W.2d 585 (Mo.1974), considered contentions that the statutory inclusion of marijuana in the same schedule as narcotics, thereby subjecting one convicted for the sale of marijuana to penalties as harsh as those imposed for the sale of narcotics under § 195.200, is a violation of the due process and equal protection provisions of the Missouri and United States Constitutions. The court rejected these arguments for the reason that lack of rational basis for the classification had not been demonstrated. State v. Burrow, supra at 589--93; State v. Stock, supra at 895(7, 8). Further the court in Stock stated: 'All who sell marijuana are subject to the same punishment, and the legislature can, if it deems it advisable to control the unlawful traffic in marijuana, classify marijuana as it has done so.' See also State v. Golightly, 495 S.W.2d 746, 753(4--6) (Mo.App.1973), holding that sellers of marijuana may be punished with the same severity as sellers of heroin, cocaine, etc.

Defendant's present contention that the sentence provided here by § 195.200 constitutes cruel and unusual punishment must be examined against the established standards of constitutional construction declared by our Supreme Court. A punishment is not cruel and unusual because of its...