State v. Murphy, s. 53467
| Decision Date | 13 March 1990 |
| Docket Number | 56475 and 56575,Nos. 53467,s. 53467 |
| Citation | 787 S.W.2d 794 |
| Parties | STATE of Missouri, Respondent, v. James Scott MURPHY, Appellant. James Scott MURPHY, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Dave Hemingway, St. Louis, for appellant.
William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant appeals after conviction and sentence in a case tried on an amended information in lieu of indictment which charged defendant committed the class "D" felony of escape from confinement "in that, on Friday, September 13, 1985, at approximately 10:10 a.m., at 501 South Brentwood Blvd., in the City of Clayton, in the County of St. Louis, State of Missouri, defendant, while being held in confinement after conviction for robbery in the first degree, a felony, escaped from confinement." (Emphasis added). We find this information failed to charge a crime under § 575.210.1 RSMo 1978. Accordingly, the trial court never acquired jurisdiction. We reverse and remand with directions that the trial court vacate the judgment and sentence.
Escape from confinement is defined in § 575.210.1 RSMo 1978 as follows:
A person commits the crime of escape or attempted escape from confinement if, while being held in confinement after arrest for any crime, or while serving a sentence after conviction for any crime, he escapes from confinement.
A defendant may be charged either for: (1) escape from confinement after arrest for a crime, or, (2) escape from confinement while serving a sentence after conviction. The original Grand Jury indictment of James Scott Murphy charged, "Defendant, while serving a sentence after conviction for robbery in the first degree, a felony, escaped from confinement." The indictment stated a crime under the second alternative. However, the amended information attempted to allege a crime for escape from "confinement after conviction for robbery in the first degree" without alleging defendant was serving a sentence. The amended information does not charge either "under arrest for robbery" or "while serving a sentence." It charges only "while held in confinement after conviction for robbery." Essential elements of the crime are missing under either statutory alternative.
In the present case defendant was originally charged with stealing from a person and robbery first degree. The court sentenced defendant to serve a term of imprisonment of one year in the county jail on the stealing charge and ten years on the robbery charge. It suspended execution of the sentence on the robbery charge and placed defendant on probation for five years. Defendant served the county jail sentence. While on probation he was arrested for "possible probation violation." The day before a probation revocation hearing he escaped from custody. At the time of escape he was not serving a sentence after conviction for robbery. This would account for the alteration of the charged crime of escape from the language in the indictment to the language in the amended information. But the information does not charge escape from confinement after arrest for a crime.
This instruction was patterned after MAI-CR, 3rd Ed, 329.74. The pattern instruction permits submission of a crime defined in § 575.210.1 during confinement after arrest for a named crime or while serving a sentence after conviction for a named crime. It does not offer a third alternative of escape from confinement after conviction for a named crime but while not serving a sentence for that crime. Defendant would not be guilty of a crime under § 575.210.1 because he escaped after conviction for a particular crime but was confined for some other reason than serving a sentence for that crime. Obviously, the verdict directing instruction followed the language of the amended information. Both failed to follow either the provisions of § 575.210.1 or MAI-CR 3rd 329.74.
"Ordinarily, when a statute provides that a crime may be committed in several different ways, or by differing means, the information must state the way in which the crime was committed." State v. Stigall, 700 S.W.2d 851, 854 (Mo.App.1985). See also, State v. Charity, 619 S.W.2d 366, 367 (Mo.App.1981); State v. Newhart, 503 S.W.2d 62, 67[2-5] (Mo.App.1973). "The test of sufficiency of an indictment is whether it contains all essential elements of the offense as set out in the statute and clearly apprises defendant of the facts constituting the offense." State v. Gilmore, 650 S.W.2d 627, 628 (Mo. banc 1983). If any of the elements of a crime are missing they cannot be supplied by intendment or implication. Id. at 629. If the indictment is insufficient, the court acquires no jurisdiction and whatever transpires thereafter is a nullity. Id. at 628. Where an indictment or information is insufficient the resulting lack of jurisdiction of subject matter may not be waived. State v. Couch, 523 S.W.2d 612, 615 (Mo.App.1975). An indictment must state plainly, concisely, and definitely the essential facts constituting the offense charged. Rule 23.01(b)(2).
The amended information charged escape from confinement after conviction for robbery in the first degree. This pleading does not state a crime under either of the alternative definitions in § 575.210.1 RSMo 1978. Under the first alternative the state may allege escape from confinement after arrest for robbery. Under the second alternative the state may allege escape from confinement while serving a sentence after conviction for robbery. The amended information does not allege defendant was serving a sentence, an essential element of the second alternative, or confinement after arrest for robbery, an essential element under the first alternative. Accordingly, the amended information was insufficient, the court acquired no jurisdiction and the proceedings in the trial court were a nullity. Gilmore, 650 S.W.2d at 628.
We remand with directions that the trial court vacate the judgment and sentence. We deny defendant's Rule 29.15 appeal as moot.
I concur in the opinion of Karohl, J. and write only to express my disagreement with the dissenting opinion of Pudlowski, P.J.
There is substantial evidence in the record to conclude that defendant was put on probation after a conviction for the crime of robbery in the first degree. He was later rearrested for that same crime. The reason for his rearrest for that crime was a possible probation violation. The term "possible probation violation" is simply an explanation for his rearrest for the underlying crime.
A probation revocation hearing is civil in nature in that a defendant is not entitled to the full panoply of rights that he has in a criminal trial. In this case the defendant had previously pleaded guilty and been sentenced. The purpose of the probation revocation hearing was to decide whether that sentence should be executed. If the hearing had occurred and the...
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