State v. Sharp
Decision Date | 08 March 1976 |
Docket Number | No. 59288,59288 |
Citation | 533 S.W.2d 601 |
Parties | STATE of Missouri, Respondent, v. John W. SHARP, Appellant. |
Court | Missouri Supreme Court |
Alan G. Kimbrell, Rosecan, Popkin & Chervitz, St. Louis, Brent J. Williams, Clayton, for appellant.
Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant, John W. Sharp, was convicted of assault with intent to do great bodily harm by the Circuit Court of Carter County, Missouri, and was sentenced to imprisonment for a term of three years. Following rendition of judgment and imposition of sentence, an appeal was perfected to the Springfield District of the Court of Appeals, where the judgment was affirmed. Upon application of appellant, the cause was transferred here by order of this Court. We determine the cause 'the same as on original appeal.' Mo.Const. Art. V. § 10.
On or before December 2, 1974, the prosecuting attorney in and for Carter County and attorney for appellant entered into a 'disposition agreement.' It was agreed that the charge would be reduced from 'assault with intent to commit great bodily harm with malice aforethought' to 'assault with intent to commit great bodily harm;' that the case would be submitted to the trial court, without a jury, on an agreed statement of facts; and that the prosecuting attorney 'would recommend five years and parole.'
On December 2, 1974, the following transpired in open court:
On December 2, 1974, the trial court then 'informed himself to the full extent' of the stipulation of facts; found appellant guilty; ordered appellant to appear for sentencing on January 24, 1975; and ordered a pre-sentence investigation.
On January 20, 1975, a pre-sentence report was filed. This report concluded that 'we would consider it in the best interest of society that this person be placed in the institution.'
On January 24, 1975, appellant again appeared and the trial court addressed him as follows:
'
'That'll be all.
On January 31, 1975, attorney for appellant filed a 'Motion for New Trial' in which appellant asserted he had been deprived of due process of law, of effective assistance of counsel, and of his right to a trial by jury.
On February 6, 1975, attorney for appellant filed an 'Amended Motion for a New Trial' in which he attacked the sufficiency of the pre-sentence report, asserted unethical conduct on the part of the prosecuting attorney, and asked 'the Court to grant him all of the relief prayed for in the Motion for a New Trial' filed on January 31, 1975.
On February 11, 1975, the trial court conducted a hearing. We have carefully read the transcript of that hearing and have concluded that the 'disposition agreement' set forth above was made; that the trial court was advised of the agreement; that it was customary practice for the trial judge, in taking guilty pleas, to indicate to the accused what he was going to do regarding sentencing and to then allow the accused to withdraw his plea, if he desired, and have a jury trial; that the attorney for appellant told appellant that if the trial court did not grant parole, appellant 'could withdraw his guilty plea or in this case the statement of facts which would be equivalent;' that the prosecuting attorney recommended 'five years and parole;' but that the trial court, after studying the pre-sentence report, reached an independent judgment and refused to accept the recommendation.
The position of the trial court is as follows:
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...145 S.W.3d 21, 23 (Mo.App.2004). This right can be waived if the waiver is voluntarily, knowingly and intelligently made. State v. Sharp, 533 S.W.2d 601, 605 (Mo. banc 1976); Mitchell, 145 S.W.3d at 23. Here, Defendant was charged with committing two felonies. Rule 27.01(b) provides that "[......
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State v. Haight, 93APA08-1133
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