Wintjen v. State, 53640

Decision Date12 November 1968
Docket NumberNo. 2,No. 53640,53640,2
Citation433 S.W.2d 257
PartiesLarry Dale WINTJEN, Movant-Appellant, v. STATE of Missouri, Respondent
CourtMissouri Supreme Court

Wayne W. Waldo, Jefferson City, for movant-appellant.

Norman H. Anderson, Atty. Gen., John C. Klaffenbach, Asst. Atty. Gen., Jefferson City, for respondent.

BARRETT, Commissioner.

It was charged in the Circuit Court of Cole County that on the 27th day of February 1967, the appellant, Larry Dale Wintjen, while confined in the Intermediate Reformatory in Cole County (RSMo 1959, § 216.370, V.A.M.S.) offered violence to a guard, George T. Bacon, a felony, (RSMo 1959, § 216.460, V.A.M.S.), by striking him with his fist. Larry, then age 17 years, had been transferred from the Training School for Boys at Boonville to the Intermediate Reformatory by the State Board of Training Schools. RSMo 1959, § 219.230, V.A.M.S. On April 17, 1967, Larry, refusing the offer of counsel, entered a plea of guilty and, as of the date of the hearing, was sentenced to three and one-half years' imprisonment. The precise dates do not appear, but apparently in October 1967, Larry, employing the form prescribed by amended Rule 27.26, V.A.M.R., filed a motion in the Circuit Court of Cole County to vacate the three and one-half years' sentence and judgment claiming that he had been illegally confined in the adult penal institution and that therefore he was not and could not be convicted of assaulting the guard with his fist. In this connection Larry attacked the validity of the proceedings in St. Charles County, beginning in February 1959 when he was nine years of age, in which he was first adjudged a neglected child and in 1962 at age thirteen was transferred as in need of discipline to the custody of the State Training Schools 'until he attains the age of twenty-one years.' RSMo 1959, § 211.231. After a hearing on the 27.26 motion, Larry being then represented by diligent court-appointed counsel, the court made findings of fact in which the court reviewed the exhibits relating to his juvenile record in St. Charles County and as to the immediate charge of offering violence to a guard found that the plea of guilty was voluntarily entered and that there was no evidence upon which the latter sentence could or should be set aside.

Upon the hearing of this motion in the Circuit Court of Cole County the only evidence adduced by either the appellant or the state was in the form of exhibits; on behalf of Larry certified copies of the various juvenile court proceedings in St. Charles County and the records of the Board of Training Schools, and on behalf of the state a transcript of the proceedings upon Larry's plea of guilty to offering violence to a guard on April 17, 1967.

In this court the argument is that Larry could not have been guilty of the felony of offering violence to a guard because he says the information to which he entered his plea of guilty recited that he had been 'duly convicted * * * of the crime of delinquency' when there is no such offense and, in fact, the original judgment was one of 'neglect,' all of which was or should have been apparent to the court and the prosecuting attorney. In this connection appellant's counsel attacks the constitutionality of numerous sections of the juvenile code, particularly §§ 211.031, 211.131, 211.171, 211.181, and § 219.230 of the State Training School Act by which the board transferred Larry to a 'state adult correctional institution.' In support of the claims of constitutional invalidity counsel relies upon In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 and, now it must be added, Re Whittington, 391 U.S. 341, 88 S.Ct. 1507, 20 L.Ed.2d 625, decided May 20, 1968.

As a distinguished juvenile judge has said, 'There is no doubt that the decision of In re Gault revolutionizes the law relating to juveniles.' Ketcham 'Guidelines from Gault', 53 Va.L.R. 1700, 1718. It is not necessary here, however, to consider the juvenile proceedings in St. Charles County in the light of these important decisions. There is in the first place the diversity of opinion as to the retroactivity of these decisions (47 Neb.L.R. 558, 585), although Re Whittington was remanded to the Ohio courts 'for reconsideration in light of Gault,'...

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2 cases
  • State v. Foster
    • United States
    • Missouri Court of Appeals
    • July 1, 1974
    ...wrist with a chair arm); State v. Goodman, 425 S.W.2d 69 (Mo.1968); (defendant struck a guard in the face with his fist); Wintjen v. State 433 S.W.2d 257 (Mo.1968), (defendant struck a guard with his fist); State v. Denmon, 473 S.W.2d 741 (Mo.1971), (defendant struck a guard with his hands)......
  • State v. Jackson
    • United States
    • Missouri Court of Appeals
    • October 1, 1973
    ...such order is illegal, does not constitute a defense to the charge. State v. Goodman, 425 S.W.2d 69, 73 (Mo.1968); Wintjen v. Missouri, 433 S.W.2d 257, 258 (Mo.1968). The obvious reason for this is the vital necessity of proper penal administration and the maintenance of order and safety an......

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