Tillock v. State, 14521
| Decision Date | 29 May 1986 |
| Docket Number | No. 14521,14521 |
| Citation | 711 S.W.2d 203 |
| Parties | Lloyd Michael TILLOCK, Respondent, v. STATE of Missouri, Appellant. |
| Court | Missouri Court of Appeals |
David Robards, Joplin, Missouri, for respondent.
William J. Fleischaker, Joplin, David C. Dally, Carthage, Joseph W. Rigler, Joplin, for appellant.
Movant, Lloyd Michael Tillock, entered a plea of guilty to a felony charge of selling marijuana, § 195.020, 1 and was sentenced to five years' imprisonment.
After he was confined, Tillock filed a motion to set aside his conviction and sentence pursuant to Rule 27.26, alleging, among other things, that his plea of guilty was involuntary, as he had entered it on the advice of his attorney who had assured Tillock that he would be placed on probation if he entered the plea. The motion was heard by a successor judge, the sentencing judge having been disqualified.
An evidentiary hearing was held, during which Tillock testified that it was his belief, based on representations of his attorney, that he would be placed on probation by the trial court if his presentence report was favorable and that, if the trial court indicated Tillock would not be placed on probation, he would be allowed to withdraw his plea. His trial attorney was not called as a witness by Tillock or the state. After hearing, the motion court made findings of fact and conclusions of law, and entered an order vacating the sentence and setting aside the guilty plea. The motion court found that the presentence report made by an officer of the Missouri Board of Probation and Parole, which stated "not oppose ... probation," was a favorable report, and "according to movant's understanding of the plea agreement and the assurances of his attorney, he should have been permitted to withdraw his plea of guilty if probation was to be denied."
The state appealed, alleging 1) Tillock had waived any right to Rule 27.26 relief by "failing to pursue the direct appeal of his conviction and sentence," 2) the motion court's findings of fact were against the greater weight of the evidence, and 3) the motion court's conclusions were based on an erroneous statement and application of law.
Our review is limited to a determination of whether the findings, conclusions, and order of the motion court are clearly erroneous. Rule 27.26(j). As to point one, the scope of review on direct appeal after a guilty plea is restricted to questions of jurisdiction of subject matter and legal sufficiency of the criminal charge. State v. Zito, 595 S.W.2d 383, 384 (Mo.App.1980). Tillock's remedy to challenge the legitimacy of his claim of an involuntary plea was to file a Rule 27.26 motion, which rule is intended to provide the exclusive procedure to be followed when a prisoner in custody seeks relief on the basis of a claim of an involuntary plea of guilty. See Winford v. State, 485 S.W.2d 43, 49 (Mo. banc 1972). The state's claim that Tillock waived his right to contest the voluntariness of his...
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