State v. Vermillion, 54220
| Decision Date | 10 November 1969 |
| Docket Number | No. 54220,No. 1,54220,1 |
| Citation | 446 S.W.2d 788 |
| Parties | STATE of Missouri, Respondent, v. Charles Wayne VERMILLION, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.
J. Arnot Hill, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
HOUSER, Commissioner.
Charged with and convicted by a jury of robbery in the first degree, under the Second Offender Act, § 556.280, RSMo 1959, V.A.M.S., and sentenced by the trial judge to 50 years' imprisonment, Charles Wayne Vermillion has appealed to this Court on two grounds.
First, he claims that the circuit court lacked jurisdiction to impose sentence because it did not make the required finding under § 556.280, supra, which requires the trial judge to hear and determine '(e)vidence of the prior conviction, sentence and subsequent imprisonment or fine, parole, or probation * * * prior to the submission of the case to the jury, and the court shall enter its findings thereon.' Appellant does not seek to impeach the proceedings on the ground that there was insufficient evidence to make a proper finding that he was priorly convicted, sentenced and subsequently imprisoned, etc. Appellant's complaint is that 'the record discloses no determination by the court based upon this evidence * * *,' citing State v. Garrett, Mo.Sup., 416 S.W.2d 116, and State v. Dixon, Mo.Sup., 434 S.W.2d 564. In Garrett the following finding was held insufficient compliance with the requirements of § 556.280: 'The Court, being sufficiently advised in the premises, finds that the defendant has sustained a prior conviction, and orders the defendant tried as a habitual criminal.' In Dixon the following entry was held insufficient: 'Court finds evidence of former convictions sufficient to prove former convictions.' In State v. Holmes, Mo.Sup., 434 S.W.2d 555(7), the following finding was adjudged insufficient: 'The Court finds that Exhibits 13 and 14 (the journal entry of the trial court showing the conviction and the defendant's record in the reformatory) are admissible in evidence and that they prove the prior conviction of the defendant * * *.' The records in these three cases were incomplete and fragmentary. The findings referred only to prior convictions, omitting any reference to subsequent probation, parole, fine or imprisonment.
In Vermillion's case the trial judge made no finding of any kind prior to the submission of the case to the jury. As the last act in the state's case the original judgment entery showing a prior conviction and sentence, and the record of the department of corrections evidencing that defendant was incarcerated and received by the department, were offered and received in evidence. The state then closed its case. At that stage of the proceedings there is no record of any minute or docket entry, written memorandum or court order, or other record entry of any kind indicating the action taken by the court on the matter. Nor does the transcript reveal any oral statement made by the judge at that time indicating the court's determination or findings on the matter. The record is silent. Subsequent developments indicate that the court considered the Second Offender Act applicable: The instructions and verdict forms did not authorize the jury to assess a penalty upon a finding of guilt, and the verdict simply found that defendant was guilty of robbery, first degree, as charged in the information, without assessing punishment.
After the verdict was read in open court, the judge stated that he intended to assess the punishment at that time, and made this statement, which was taken down by the court reporter:
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Clay, v. Dormire
...Accord, State v. Harris, 547 S.W.2d 473, 475-476 (Mo. banc 1977); State v. Blackwell, 459 S.W.2d 268, 271 (Mo. banc 1970); State v. Vermillion, 446 S.W.2d 788, 790 (Mo. banc 1969); State v. Hill, 371 S.W.2d 278, 282-283 (Mo. banc 1963); State v. Olson, 806 S.W.2d 111, 112-113 (Mo. App. 1991......
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State v. Hubbard
...did not constitute an inflammatory appeal calculated to arouse the hostility of the jurors toward the defendant. See State v. Vermillion, 446 S.W.2d 788, 790 (Mo.1969); State v. Evans, 406 S.W.2d 612 (Mo.1966). We thus find no abuse of discretion by the trial court herein in refusing to gra......
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State v. Davis
...should be 'discouraged' in neither instance was the case reversed for that reason. State v. Maxwell, Mo., 376 S.W.2d 170; State v. Vermillion, Mo., 446 S.W.2d 788. In the particular circumstances of this record there is a persuasive analogy in State v. Hubbs,294 Mo. 224, 242 S.W. 675. In th......
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State v. McFall, Nos. 18011
...State v. Harris, 547 S.W.2d 473, 475-476 (Mo.banc 1977); State v. Blackwell, 459 S.W.2d 268, 271 (Mo. banc 1970); State v. Vermillion, 446 S.W.2d 788, 790 (Mo.1969); State v. Hill, 371 S.W.2d 278, 282-283[7-9] (Mo.1963); State v. Olson, 806 S.W.2d 111, 112-113 (Mo.App.1991); State v. Finch,......