Sweazea v. State, 58604
| Decision Date | 12 November 1974 |
| Docket Number | No. 58604,58604 |
| Citation | 515 S.W.2d 499 |
| Parties | Milburn John SWEAZEA, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
William J. Shaw, Public Defender, Melvin Franke, Asst. Public-Defender, Twenty-First Judicial Circuit, Clayton, for movant-appellant.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Movant, Milburn John Sweazea, (hereinafter referred to as defendant) appealed to the St. Louis District of the Court of Appeals from a judgment overruling his motion to vacate filed under Rule 27.26, V.A.M.R. That court adopted an opinion which affirmed the judgment. Upon defendant's application we ordered the case transferred and it will be determined here the same as on original appeal. We affirm.
In 1969 defendant was tried and convicted for the offense of first degree robbery. The court (having found a prior felony conviction) imposed a sentence of imprisonment for a term of 10 years under Section 556.280, 1 the second offender act. Defendant appeal to this court and we affirmed. In this 27.26 proceeding the sole contention of defendant in the trial court, and here on appeal, is that the court erred in assessing the punishment because he had not been validly convicted of a prior felony. For that reason he says he should have another trial at which the jury should assess his punishment if he is again convicted.
At the evidentiary hearing the only testimony offered was that of a deputy circuit clerk for St. Louis City who presented and identified the file in a case in which defendant was charged with assaulting a police officer on November 20, 1965. On November 7, 1966, defendant entered a plea of guilty to that charge and was sentenced to a three year term of imprisonment.
The difficulty with which we were presented on defendant's prior appeal and upon this appeal arises from the fact that there are two statutes which make it a crime to assault an officer. Under Section 557.220 the offense is a misdemeanor and under Section 557.215, a felony. At the original trial the State, in order to prove the prior conviction, offered documents reciting that defendant had entered a plea of guilty to 'assaulting a police officer' and had received a three year sentence therefor and had been imprisoned in accordance therewith. At that time defendant's counsel objected that the proof was insufficient because the judgment did not disclose that the offense was a felony. The trial court ruled against defendant and made a finding that the conviction had been for a felony. After the jury verdict of guilty the trial court assessed the punishment. The defendant appealed to this court and the first point in his brief was that 'The Court erred in finding that defendant had previously been convicted of a felony, and in removing the question of punishment from the jury, in that the evidence adduced by the State failed to prove beyond a reasonable doubt that defendant had previously been convicted of a felony.' In affirming the judgment we ruled that point against defendant saying that State v. Sweazea, 460 S.W.2d 614, 616 (Mo.1970).
In the instant proceeding to vacate defendant presents another reason for his contention that there was no valid conviction of a prior felony. He offered in evidence the indictment in the assault case which alleged that defendant '. . . wilfully did strike, beat and wound PATROLMAN ALONZO HOFFMAN, a member of the St. Louis Metropolitan Police Department, said PATROLMAN ALONZO HOFFMAN, then and there and at the time of the assault aforesaid, being actively engaged in the performance of duties imposed upon him by law; contrary to Section 557.215, Missouri Revised Statutes, in such case made and provided. . . .' Relying on State v. Vonderau, 438 S.W.2d 271 (Mo.1969) he now says that his conviction was void because the indictment did not allege that he feloniously struck the patrolman. The trial court made findings, in part, that 'Plaintiff (movant) herein was indicted by the Circuit Court Grand Jury in the City of St. Louis in December, 1965 on the charge of Assaulting a Police Officer under Section 557.215 RSMo which makes such an offense a felony . . . The Court further finds that this same issue was raised in the Plaintiff's appeal and was decided against him in the case of State vs. Sweazea, 460 S.W.2d 614, L.C. 616(1).'
The Vonderau case held that the indictment therein was fatally defective for failure to allege that the act in question was...
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McCrary v. State
...where an issue is raised and decided on direct appeal, defendant cannot obtain another review thereof in a 27.26 proceeding.' Sweazea v. State, 515 S.W.2d 499, 501 (Mo.banc 1974). " If issues, apparently finally decided, may be reopened and reviewed simply because a litigant has an addition......
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Conley v. White, 78 0239 CV W 4.
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