State v. Tettamble, 35132
| Decision Date | 23 December 1974 |
| Docket Number | No. 35132,35132 |
| Citation | 517 S.W.2d 732 |
| Parties | STATE of Missouri, Respondent, v. Gerald Francis TETTAMBLE, Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Stanley J. Murphy, Flat River, for appellant.
John C. Danforth, Atty. Gen., William F. Arnet, Jefferson City, for respondent.
This appeal from a conviction of Murder in the Second Degree is one of a long line, having its inception on May 25, 1964, at which time, following a jury trial, defendant was found guilty, punishment was assessed by the trial court at 99 years imprisonment, and he was sentenced accordingly. His conviction was affirmed in State v. Tettamble, 394 S.W.2d 375 (Mo.1965). Appellant, being indigent, was not represented by counsel on that appeal and upon further appeal to the United States Supreme Court his conviction was vacated and the cause remanded to the Supreme Court of Missouri for further review in light of Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967). Tettamble v. Missouri, 386 U.S. 265, 87 S.Ct. 1034, 18 L.Ed.2d 42 (1967). The Supreme Court of Missouri, as directed, set aside the affirmance, reinstated the cause on its calendar, and ordered the trial court to appoint counsel in accordance with Rule 29.01(c), V.A.M.R. Counsel was appointed, briefed and argued the case in the Supreme Court and once again the conviction was affirmed, but the cause was remanded to the circuit court for allocution and resentencing with counsel present. State v. Tettamble, 431 S.W.2d 441 (Mo.1968).
Appellant was brought before the trial court and resentenced to ninety-nine years on December 9, 1968, but on appeal the cause was reversed and remanded for the reason the trial court did not make the required findings with respect to the applicability of the Second Offender Act. § 556.280 V.A.M.S. State v. Tettamble, 450 S.W.2d 191 (Mo.1970). On April 10, 1970, proceedings were conducted before the Honorable Herbert Moss but he was subsequently disqualified and on October 21, 1970, the Honorable Philip G. Hess imposed a sentence of fifty-five years imprisonment on the appellant who again appealed successfully, the aforesaid judgment of conviction being once more reversed and remanded on September 14, 1972, because the transcript of the evidence of the hearing before Judge Moss was not before the Supreme Court and could not be obtained, so that the Supreme Court could not properly determine whether the requisite findings were made by the trial court relative to the applicability of the Second Offender Act. For this reason the cause was remanded to the trial court with directions to conduct an appropriate hearing for further consideration of the evidence previously on that issue and any such additional evidence as might be submitted thereon and to make appropriate findings.
Pursuant to this mandate the appellant was brought before the court on November 22, 1972, at which time the court received into evidence a certified copy of sentence and judgment of the Circuit Court of the City of St. Louis, Exhibit No. 1, and a certified transcript of the serial record from the Department of Corrections, including a photograph and a fingerprint card of the appellant. The trial court thereafter made the following findings: That the defendant was convicted of the crimes of burglary in the second degree and larceny on the 19th day of November, 1957, in the City of St. Louis and, in the presence of his attorney was sentenced to three years in the State Penitentiary for burglary second degree and two years for larceny in cases numbered 1292F, 1293F and 1294F, said sentences to run consecutively. The trial court further found that the appellant was found guilty of stealing from a person in case Number 1291F on November 19, 1957, in the Circuit Court of the City of St. Louis and was sentenced to two years in the State Department of Corrections, said sentence to run concurrently with the above sentences. The trial court further found that these offenses were punishable by imprisonment in the penitentiary and that the appellant was thereupon sentenced and imprisoned in the State Penitentiary at Jefferson City, Missouri; that the appellant was charged in the Circuit Court of Jefferson County with the offense of first degree murder and that he was the one referred to in the cases aforesaid and is one and the same person; that pursuant to the aforesaid sentences the appellant was placed in the Department of Corrections of the State of Missouri, served time therein and was discharged therefrom on July 6, 1961; that he was, therefore, a second offender and subject to the provisions of § 556.280 V.A.M.S. The trial court then reviewed appellant's Exhibits A through D, consisting of an affidavit, letters and a tape recording concerning the appellant's character, informed the appellant that he had been found guilty by a jury on May 25, 1964, of Murder in the Second Degree, granted allocution, and imposed sentence for a term of fifty years, crediting him thereon with time already spent in confinement. It is from this sentence and judgment that appellant perfects this appeal.
Appellant's first Point is that the trial court abused its discretion and erred in granting the State a continuance over his objection on November 8, 1972 and 'in not ordering a new (sic) trial on that date.' The continuance to which appellant makes reference is one with respect to the applicability of the Second Offender Act pursuant to the mandate of the Supreme Court of the State of Missouri of September 14, 1972. The only evidence in the record relative to a continuance is that contained in the Supplemental Transcript filed in this court on May 13, 1974, and consists of a docket entry of November 8, 1972, in the trial court's Docket Book which reads: 'By application of Prosecuting Attorney, this cause is continued to November 22, 1972, because of a clerical error in the transcript.' The record is devoid of any objection lodged by the appellant to the granting of this continuance, but, nevertheless had there been one, a trial court has great discretion in the granting or denying of a continuance to one or more of the parties to litigation, and a strong showing is required to induce a reviewing court to interfere in the absence of a clear abuse of discretion. State v. Cuckovich,485 S.W.2d 16 (Mo. banc 1972). Based upon the record before us we conclude that there is nothing upon which we could find an abuse of discretion in this instance, nor has the appellant pointed out in his brief in what manner the granting of this continuance prejudiced him. We therefore find no merit in this Point.
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