State v. Shell, 45570
| Decision Date | 11 February 1957 |
| Docket Number | No. 45570,No. 1,45570,1 |
| Citation | 299 S.W.2d 465 |
| Parties | STATE of Missouri, Respondent, v. Clarence SHELL, Appellant |
| Court | Missouri Supreme Court |
No attorney for appellant.
John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.
HOLMAN, Commissioner.
Defendant, Clarence Shell (Schell), on February 11, 1928, in the Circuit Court of Jackson County, Missouri, entered a plea of guilty to each of five separate charges of robbery in the first degree, and was sentenced to 10 years' imprisonment in the penitentiary on each charge, it being provided that the sentences run consecutively. On February 17, 1956, defendant filed in said court a motion to vacate and correct the judgments rendered in the foregoing cases under the provisions of Supreme Court Rule 27.26, 42 V.A.M.S. Thereafter, the prosecuting attorney of Jackson County filed a motion to dismiss the defendant's said motion, which was sustained by the trial court and the motion was accordingly dismissed. Defendant has filed a notice of appeal and the matter is therefore before us for de novo review. Supreme Court Rules 28.03 and 28.05.
The defendant's motion does not appear to have been prepared by an attorney. However, we construe it (as did the trial court) as alleging 'a total lack of counsel' and that defendant was illiterate at the time of said sentences and in ignorance of the law as to his right to obtain counsel without cost to himself. He further claims that he was not informed as to his right to counsel and a trial by jury and has been denied his right to trial by jury for 28 years in direct violation of his constitutional rights. It is also stated that defendant pleaded guilty to one charge only. He seeks, under S.C.Rule 27.25, permission to withdraw his 'plea' of guilty.
We recently stated that State v. Cerny, Mo.Sup., 286 S.W.2d 804, 806. The motion to dismiss alleged that (1) defendant's motion did not allege any ground upon which relief could be granted under S.C.Rule 27.26; (2) the same issues have been finally determined in various habeas corpus proceedings previously instituted by defendant Shell in the Supreme Court of Missouri and in other state and federal courts, and (3) the allegations in said motion are conclusions and do not allege facts which would authorize relief under Rule 27.26.
Supreme Court Rule 27.26 provides, in part, that 'Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the prosecuting attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.' The transcript filed herein appears to fully incorporate the contents of the 'files and records' in each of the five cases under consideration. The trial court, in its order of dismissal, indicated its view that the files and records disclosed that defendant was not entitled to the relief sought and hence followed our case of State v. Cerny, supra, 286 S.W.2d 804, 807, which states that 'Groundless motions may be summarily disposed of, and trial courts may enter findings and conclusions of law to that effect.'
In his brief filed in this court defendant advances the contention that the trial court had no legal right to sentence him to five terms of ten years each, the sentences to run consecutively. No authorities are cited in support of this assertion. We find no merit in this contention. It has long been established that the court may, in its discretion, under circumstances such as existed in the cases under consideration, impose either cumulative or concurrent sentences. The only requirement is that the judgments should clearly reveal the intent of the court in that respect. Anthony v. Kaiser, 350 Mo. 748, 169 S.W.2d 47. It was explicitly provided in the five judgments under...
To continue reading
Request your trial
-
State v. McDonald
...Mo., 317 S.W.2d 403, certiorari denied 358 U.S. 942, 79 S.Ct. 348, 3 L.Ed.2d 349; Mackey v. Kaiser, Mo., 187 S.W.2d 198; State v. Shell, Mo., 299 S.W.2d 465, certiorari denied 353 U.S. 967, 77 S.Ct. 1052, 1 L.Ed.2d 916, certiorari denied 356 U.S. 939, 78 S.Ct. 782, 2 L.Ed.2d 814; State v. K......
-
State v. Thompson
...in like form or in principle, we shall rule upon them. A final adjudication of such points forecloses their use in the future. State v. Shell, Mo., 299 S.W.2d 465, certiorari denied Shell v. State, 353 U.S. 967, 77 S.Ct. 1052, 1 L.Ed.2d 916, certiorari denied 356 U.S. 939, 78 S.Ct. 782, 2 L......
-
State v. Kitchin
...of the rule, if he is thereby satisfied that the movant is entitled to no relief. State v. Cerny, Mo., 286 S.W.2d 804, 807; State v. Shell, Mo., 299 S.W.2d 465. The proceedings under Rule 27.26 constitute a collateral attack upon the judgment, and they must meet all the requirements of a co......
-
State v. Moreland, 51333
...is upon the defendant to prove any alleged incompetency to waive. See, also, generally: State v. Kitchin, Mo., 300 S.W.2d 420; State v. Shell, Mo., 299 S.W.2d 465; certiorari denied Shell v. State, 353 U.S. 967, 77 S.Ct. 1052, 1 L.Ed.2d 916, certiorari denied 356 U.S. 939, 78 S.Ct. 782, 2 L......