White v. State, 36695
| Decision Date | 04 November 1975 |
| Docket Number | No. 36695,36695 |
| Citation | 530 S.W.2d 444 |
| Parties | William E. WHITE, Movant, Appellant, v. STATE of Missouri, Respondent. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Charles D. Kitchin, Public Defender, James W. Whitney, Jr., Asst. Public Defender, St. Louis, for appellant.
John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Cosentino, Asst. Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
William E. White pleaded guilty to three counts of robbery in the first degree by means of a dangerous and deadly weapon. § 560.135, RSMo.1969. He was sentenced to twelve years on each count, the sentences to run concurrently. Defendant then moved to vacate his sentence pursuant to Rule 27.26. His motion was denied by the circuit court after an evidentiary hearing and he appeals from this judgment.
The state contends that defendant did not file timely notice of appeal and that this court thus lacks jurisdiction. We dispose of this first since if we have no jurisdiction we cannot consider the merits of the appeal. The contention is without merit. State v. Gullett, 411 S.W.2d 227, 228(1--4) (Mo.1967). See also State v. Lindner, 498 S.W.2d 754, 755 (Mo. banc 1973); Johnson v. State, 521 S.W.2d 479 (Mo.App.1975).
Judgment was entered on October 29, 1974. Since no motion for a new trial was filed, the judgment became final on November 28, 1974. Rule 81.05(a). Defendant's notice of appeal was filed November 26, 1974, two days before the judgment became final. Notice of appeal is timely if filed within ten days after the judgment or order appealed from becomes final. Rule 81.04. Any notice of appeal filed prematurely is deemed filed immediately after the time the judgment becomes final for the purpose of appeal. Rule 81.05(b). Defendant's notice of appeal was timely.
On the merits, movant contends that, because of ineffective assistance of counsel, his guilty pleas were a product of coercion and duress rather than voluntarily and knowingly made as required by Rule 25.04. His charge arises from the events that preceded his arraignment. Movant's sister testified at the hearing on his 27.26 motion that the attorney originally hired to represent her brother told her that 'the worst he could get my brother was five years'. Movant's mother also stated that the attorney told her that 'he would get him five years'. Movant testified that counsel told him several times that he would arrange to obtain a five year sentence and admission into a drug program if movant pleaded guilty. Two days before his arraignment, however, movant's counsel informed him that the best sentence that could be expected for him was twelve years. On the day that his plea was entered, his counsel informed him that if he chose to go to trial he could receive twenty-five years on each count.
Movant's trial counsel testified that, in light of the evidence against movant, it would have been impossible to obtain an acquittal. He informed both movant and his family that he 'would like' to obtain a sentence of five years for him. This occurred, however, before counsel was aware of movant's background, his previous record and the state's case against him. After his initial meetings with movant and his family, counsel also learned of the sentences received by two co-defendants. The co-defendant who pleaded guilty and who had no prior convictions received a twelve year sentence. The other was found guilty by a jury and received a twenty-five year sentence. Counsel explained the situation to movant and his family and 'pleaded with them to take twelve years'. He believed that this was the best sentence that could be obtained for his client.
The record made at the time of arraignment indicates that before entering his pleas movant was questioned extensively regarding the voluntary and understanding nature of his plea on each of the three counts as required by Rule 25.04. The existence of a factual basis for the guilty pleas was determined and movant was advised of the rights he was waiving by not having a jury trial. He stated that no promises or threats had been made to obtain his pleas of guilty; that he was satisfied with the advice of his counsel; that his plea to each count was his own 'free and voluntary act'; and that he understood the possible range of punishment for his offenses. His...
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