Winston v. State
| Decision Date | 10 February 1976 |
| Docket Number | No. 36864,36864 |
| Parties | Joecephus WINSTON, Jr., Movant-Appellant, v. STATE of Missouri, Respondent. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
James W. Huck, Huck, Kasten & LaBeaume, St. Louis, for movant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
This is an appeal by movant-appellant, Joecephus Winston, Jr., from an order of the circuit court of the City of St. Louis entered May 7, 1974, overruling and denying without an evidentiary hearing his motion to vacate sentence pursuant to Supreme Court Rule 27.26.
On December 6, 1971, movant withdrew his plea of not guilty to murder in the second degree, § 559.020, RSMo 1969, and entered a plea of guilty to that offense. On the guilty plea, the trial court examined the movant, in the presence of his attorney, in great detail. 1 After questioning the movant the trial court found that movant 'knowingly, understandingly, intelligently, and voluntarily' entered a plea of guilty, and the court found him to be guilty of the offense of murder in the second degree as charged. The state recommended a sentence of ten years, and after a pre-sentence investigation, movant was sentenced on January 20, 1972, to ten years in the department of corrections, and given credit for 'jail time.'
'(b) The plea of guilty herein was the exclusive result of the coercive tactics superimposed upon movant by his court appointed (attorney); and therefore said plea was not voluntarily made after a full understanding of the nature of the charges against him.
'(c) In accepting the plea of guilty aforesaid the trial judge did not make a competent determination that said plea was voluntarily made by movant.
'(d) Contrary to the order of the Court, movant was not credited with all the time spent in jail. " 2
On the same date the trial court overruled the motion because
'. . . paragraph (a) is insufficient in law to warrant relief and is manifestly contravened on the record of the plea of guilty; that paragraph (b) is merely a conclusion of the movant and is contradicted by the record of the plea of guilty; that paragraph (c) is contradicted by the record of the plea of guilty, in addition to which the Court did make such a finding; that paragraph (d) is not a ground cognizable under Rule 27.26. . . .'
Later and after two attorneys were appointed and were permitted to withdraw, the court on August 7, 1974, appointed movant's present counsel for the purposes of appeal. On February 11, 1975, counsel filed in this court a motion requesting additional time to file his notice of appeal. On February 25, 1975, this court granted appellant's motion for leave to file a late notice of appeal and appellant was granted ten days to file his notice of appeal. Rule 81.07. Such a notice was filed on March 5, 1975.
Thereafter on March 13, 1975, movant filed with the trial court a motion to set aside the May 7, 1974 order of the trial court, contending that the motion was summarily denied 'without an attorney being appointed to represent the Movant-Appellant and without the holding of an evidentiary hearing . . ..' In this motion counsel requested that he be granted leave to file an amended motion on behalf of appellant. This motion was overruled.
Notwithstanding the order of the Chief Judge of this court granting movant additional time to file his notice of appeal, we are compelled to dismiss this appeal for the reasons that (1) the notice of appeal was not timely filed and (2) a special order of this court was not obtained within six months from the date of the final judgment. Rule 81.07.
A motion filed under Rule 27.26 is an independent civil action which is governed, so far as applicable, by the Rules of Civil Procedure, rather than by the Rules of Criminal Procedure. 3 Rule 27.26(a); Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974); Brown v. State, 495 S.W.2d 690, 693 (Mo.App.1973). An order overruling a 27.26 motion is deemed a final judgment for purposes of appeal. Rule 27.26(j); State v. Gullett, 411 S.W.2d 227, 228 (Mo.1967). A judgment becomes final thirty days after its entry. Rule 81.05. A notice of appeal must be filed within ten days after the judgment or order becomes final. Rule 81.04. However, '. . . a party seeking reversal of such final judgment may file a notice of appeal in the trial court, within 6 months from the date of such final judgment, if permitted to do so by a special order of the appropriate appellate court. . . .' Rule 81.07(a). The application made to this court requesting time to file a notice of appeal was not made until February 11, 1975, and the order granting such motion was not entered until February 25, long after the expiration of the six month period when the order overruling the motion became final. We hold that the governing Rule in motions to vacate sentence is Rule 81.07 and not Rule 28.07 and requires that the notice of appeal must be filed 'within 6 months from the date of such final judgment . . ..'
The granting of the motion of appellant for leave to file a late notice of appeal by the Chief Judge on February 25, 1975 was therefore improvident. 4 Our jurisdiction is limited to the period of six months after the judgment or order became final. Asher v. Thomas, 360 S.W.2d 957, 958 (Mo.App.1962).
Consequently, movant's failure to file a timely notice of appeal and failure to obtain leave to file a notice of appeal out of time under Rule 81.07 requires us to dismiss the appeal. Gullett v. State, supra.
Ex gratia, we have reviewed the record of the guilty plea, the sentencing transcript, the motion to vacate, the briefs and authorities relied upon and the argument of appellant and find that the action of the trial court in overruling the motion was, on the merits, not 'clearly erroneous.' Rule 27.26(j). 5
The appellant in his brief contends that the court erred in (1) 'summarily overruling the movant-appellant's . . . motion to vacate . . . without first appointing counsel to assist the movant . . . thereon,' and (2) 'denying the (movant's) motion asking the court to set aside its previous ruling and to permit counsel to assist (him) in preparing an amended motion for relief.' 6 He contends (1) that where 'one's freedom is in the balance and where an adverse ruling on matters before a Court will perpetuate the imprisonment of one seeking relief . . ., no action should be taken, absent a knowing and intelligent waiver, until competent counsel is provided for the party seeking relief . . .' and (2) that '(w)here there are clear indications of a need for legal assistance, a . . . 27.26 Motion filed pro se should not be acted upon until legal counsel has been appointed . . . and that counsel has had an opportunity to confer with the Movant and to amend his Motion to include all grounds known for relief.'
In essence, appellant vigorously contends that (1) a trial court cannot take any action adverse to the movant on any 27.26 motion filed by a convicted defendant until counsel is appointed for the movant, and (2) when there is some indication for the need of a lawyer, any pro se 27.26 motion cannot be acted upon by the trial court until counsel is appointed and has had an opportunity to confer with the movant and to amend the motion.
In appellant's argument, he states that the right to counsel has been recognized in several well-known decisions of the Supreme Court of the United States, and that these same decisions and 'factors would be equally applicable where matters before the Court could result in the perpetuation of imprisonment of one seeking relief from that imprisonment.' Curiously, appellant cites no authority for this principle. He argues that when one's freedom is 'in the balance' no action should be taken until counsel is present to represent the person. 'This is because the right to be heard is of little value if it is not a right to be heard in a meaningful manner.' If the movant is indigent then the court should 'require that counsel be provided . . ..' In this cause it
Appellant further, in the argument portion of his brief, contends that '(w) hile it will be conceded that the authority (sic) relied on would appear to support the position taken by the (trial) Court, it is contended here that the summary dismissal of the . . . Motion was error.' He urges that where there are indications of a need for legal assistance a motion should not be acted upon until counsel is appointed. This position is urged because the way the present rule operates it deprives prisoners who are in need of legal assistance of that assistance, and limits appointment of counsel to those 'situations in which the Movant has legitimate grounds for relief.' Such a system operates in a 'discriminatory fashion against the less prolific but possibly equally deserving Movant.' And '(j)ust because this Movant has been unable to prepare a detailed dissertation is no reason to deny him the assistance of counsel or the right to be heard on his claims.'
Appellant's contentions are in reality an attack on the wording and operation of Rule 27.26. As we understand his argument, he contends that, regardless of the contents of a 27.26 motion, the trial court should appoint counsel before acting or ruling...
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