Zigler v. State, 55752
| Decision Date | 14 June 1971 |
| Docket Number | No. 1,No. 55752,55752,1 |
| Citation | 467 S.W.2d 873 |
| Parties | Raymond L. ZIGLER, Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
James A. Cole, Union, for appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
HIGGINS, Commissioner.
Appeal from denial, without evidentiary hearing, of motion under Criminal Rule 27.26, V.A.M.R., to vacate and set aside judgment of conviction and sentence of four years' imprisonment entered upon plea of guilty to charge of tampering with motor vehicle. §§ 560.175.1, 560.180.1, V.A.M.S.
Although the facts giving rise to this appeal are variously stated in the motion, the trial court's findings, and in appellant's brief, they are not in dispute and are established by documents of record.
On August 2, 1966, Raymond L. Zigler, with assistane of counsel, Robert L. Borberg, pleaded guilty to the felony charge of tampering with a motor vehicle, and the Circuit Court of Franklin County sentenced him to four years' imprisonment. On the same date the court granted probation to defendant subject to supervision by a probation officer and on conditions, among others, that he not leave the area to which he was assigned and that he obey the laws and ordinances.
On June 23, 1967, the Circuit Court of Franklin County considered a report from defendant's probation officer that defendant may have violated his probation by leaving his assigned area and issued a capias warrant to the probation officer for arrest of defendant, 'charged with violation of parole.'
On November 7, 1967, Raymond L. Zigler was arraigned in the Circuit Court of Audrain County on charges of burglary and stealing. On January 5, 1968, defendant pleaded guilty to the charges of burglary and stealing and the court deferred sentence pending receipt of a presentence investigation.
On January 7, 1968, the Circuit Court of Franklin County issued a capias warrant for arrest of Raymond L. Zigler, 'charged with violating conditions of his probation granted to him Aug. 2, 1966 * * * it now appearing that he thereafter violated condition * * * of said probation by committing the crime of Burglary 2nd Degree and Stealing in Audrain County, Mo.' (This and the capias of June 23, 1967, were sent as a detainer to Audrain County and ultimately to the state penitentiary.)
On February 6, 1968, the Circuit Court of Audrain County sentenced Raymond L. Zigler to two years' imprisonment for the burglary and two years' imprisonment for the stealing, and ordered that 'said latter term shall commence upon the lawful termination of the former term, it being the intention of this Court that the defendant shall serve an aggregate of Four (4) years * * *.'
The Sheriff of Audrain County, pursuant to the sentences for burglary and stealing in Audrain County, delivered Raymond L. Zigler to the Department of Corrections. On February 11, 1970, following service of the Audrain County sentences, the Department of Corrections, pursuant to the Franklin County detainer, delivered Raymond L. Zigler to the Sheriff of Franklin County. Following a hearing on that date, the Circuit Court of Franklin County found that Raymond L. Zigler had violated conditions of his probation by committing the crime of burglary and stealing to which he pleaded guilty in Audrain County, ordered his probation revoked, and ordered execution of the 4-year sentence of August 2, 1966.
On April 17, 1970, Raymond L. Zigler filed his motion to vacate judgment and sentence, stating he was in the Missouri State Penitentiary pursuant to the 4-year sentence for tampering imposed by the Franklin County Circuit Court, August 2, 1966. As grounds for 'vacating, setting aside or correcting' the judgment of conviction and sentence he alleged:
'(a) Movant's probation violation and subsequent confinement to the penitentiary * * * was a denial of due process and equal protection of the laws and of his rights * * *.
'(b) Movant's sentence has expired.
'(c) Movant was denied assistance of counsel * * * during the hearing held to determine whether he had * * * violated * * * his probation.'
On May 1, 1970, the Circuit Court of Franklin County considered the motion. After a recital of facts consistent with the foregoing statement of the case, the court concluded as matters of law that the motion contained 'no specific ground for vacating, setting aside or correcting the conviction and sentence' for the tampering charge, and...
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