State v. Presley
Decision Date | 08 October 2019 |
Docket Number | No. SD 35590,SD 35590 |
Citation | 585 S.W.3d 400 |
Parties | STATE of Missouri, Plaintiff-Respondent, v. Larry Dean PRESLEY, Defendant-Appellant. |
Court | Missouri Court of Appeals |
Attorney for Appellant – Amy M. Bartholow of Columbia, MO.
Attorney for Respondent – Eric S. Schmitt (Attorney General), Julia E. Rives of Jefferson City, MO.
Larry Dean Presley ("Defendant") signed a Waiver of Trial by Jury. The judge who accepted the waiver of a jury trial subsequently recused. Defendant now complains that the second judge who tried the case failed to ascertain that Defendant’s waiver was knowing and voluntary. Defendant argues the waiver was supposed to be specifically for the first judge. We find no error. The judgment is affirmed.
Defendant signed the following waiver of trial by jury:
The waiver was also signed by Defendant’s attorney and the trial court judge.
The trial court adduced the following at a hearing:
Defendant contends the following language changed the general language above from the waiver to a specific waiver of a jury trial only if Judge Jones tried the case:
The problem with Defendant’s argument is that at no time did he ever raise an objection to the second judge trying the case. He did not object at the time of Judge Jones' recusal, at the pre-trial hearing, or at the trial itself. The first time Defendant raised the issue that this was a "specific to Judge Jones" waiver is on appeal. As such, the only review available to Defendant is plain error review. Our standard of review for plain error is two-prong:
First, this Court considers the facts and circumstances to facially determine if there was plain error—meaning "evident, obvious and clear" error. [ State v. Jennings , 322 S.W.3d 598, 601 (Mo.App. S.D. 2010).] "In the absence of ‘plain error,’ we lack discretion to review claimed error under Rule 30.20." [ State v. ] Bode , 125 S.W.3d [924, 927 (Mo.App. W.D. 2004) ]. Only after identifying plain error, do we proceed to the second step of determining whether manifest injustice, or a miscarriage of justice resulted. Id. [Defendant] has the burden to establish the trial court committed plain error, and that there has been a manifest injustice...
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State v. Flores-Martinez
...obvious, and clear error, and (2) determine whether a manifest injustice or miscarriage of justice occurred. State v. Presley , 585 S.W.3d 400, 402-03 (Mo. App. 2019). State v. Pliemling , 645 S.W.3d 86, 91 (Mo. App. S.D. 2022). Further:Plain error review is at the discretion of the appella......
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State v. Pliemling
...obvious, and clear error, and (2) determine whether a manifest injustice or miscarriage of justice occurred. State v. Presley , 585 S.W.3d 400, 402-03 (Mo. App. 2019). It is well-settled that "a defendant must be tried for the offense as defined by the law that existed at the time of the of......
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