Sweazea v. State, No. 58604

CourtMissouri Supreme Court
Writing for the CourtHOLMAN
Citation515 S.W.2d 499
Docket NumberNo. 58604
Decision Date12 November 1974
PartiesMilburn John SWEAZEA, Movant-Appellant, v. STATE of Missouri, Respondent.

Page 499

515 S.W.2d 499
Milburn John SWEAZEA, Movant-Appellant,
v.
STATE of Missouri, Respondent.
No. 58604.
Supreme Court of Missouri, En Banc.
Nov. 12, 1974.

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.

HOLMAN, Justice.

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

Page 500

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...

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32 practice notes
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...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 additiona......
  • Conley v. White, No. 78 0239 CV W 4.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • May 31, 1979
    ...Duren claim despite his previous attempt to press the claim on direct appeal or in a previous Rule 27.26 motion. Cf. Sweazea v. State, 515 S.W.2d 499 (Mo.1974) (en banc). In State v. Key, 557 S.W.2d 696 (Mo.App.1977), Gary Dale Key raised a fair cross-section claim identical to that tendere......
  • Eaton v. State, No. KCD
    • United States
    • Court of Appeal of Missouri (US)
    • September 4, 1979
    ...12 (Mo.1973). It is not the office of the writ of error coram nobis to give defendant another review of those claims. Sweazea v. State, 515 S.W.2d 499, 501 (Mo. banc 1974); Selman v. State, 454 S.W.2d 530, 532 (Mo.1970); Colbart v. State, 451 S.W.2d 601, 602-3 (Mo.1970); State v. Durham, 41......
  • Gilmore v. State, No. 52683
    • United States
    • Missouri Court of Appeals
    • October 13, 1987
    ...or additional evidence which was not offered at the original trial. Gailes v. State, 454 S.W.2d 561, 563-4 (Mo.1970); Sweazea v. State, 515 S.W.2d 499, 501-2 (Mo. banc 1974). Finally, the allegations contained in number 1(f) need not be considered further because movant failed to argue the ......
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32 cases
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...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 additiona......
  • Conley v. White, No. 78 0239 CV W 4.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • May 31, 1979
    ...Duren claim despite his previous attempt to press the claim on direct appeal or in a previous Rule 27.26 motion. Cf. Sweazea v. State, 515 S.W.2d 499 (Mo.1974) (en banc). In State v. Key, 557 S.W.2d 696 (Mo.App.1977), Gary Dale Key raised a fair cross-section claim identical to that tendere......
  • Eaton v. State, No. KCD
    • United States
    • Court of Appeal of Missouri (US)
    • September 4, 1979
    ...12 (Mo.1973). It is not the office of the writ of error coram nobis to give defendant another review of those claims. Sweazea v. State, 515 S.W.2d 499, 501 (Mo. banc 1974); Selman v. State, 454 S.W.2d 530, 532 (Mo.1970); Colbart v. State, 451 S.W.2d 601, 602-3 (Mo.1970); State v. Durham, 41......
  • Gilmore v. State, No. 52683
    • United States
    • Missouri Court of Appeals
    • October 13, 1987
    ...or additional evidence which was not offered at the original trial. Gailes v. State, 454 S.W.2d 561, 563-4 (Mo.1970); Sweazea v. State, 515 S.W.2d 499, 501-2 (Mo. banc 1974). Finally, the allegations contained in number 1(f) need not be considered further because movant failed to argue the ......
  • Request a trial to view additional results

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