548 S.W.2d 594 | Mo. Ct. App. | 1977
Petitioner appeals from the denial of his motion under Rule 27.26 to vacate the judgment which convicted him of Robbery First Degree. The trial court denied the motion without an evidentiary hearing. We affirm.
The petitioner contends that “The trial court erred in overruling appellant’s 27.26 motion to vacate and denying him an evi-dentiary hearing because his conviction was unconstitutionally obtained by the use of prior counselless convictions to evidence his guilt and to impeach his credibility.”
In May of 1973 defendant was tried and convicted by a jury of Robbery in the First
In the trial of the case defendant testified on direct examination that he had been previously convicted of the felony of assault.
A felony conviction obtained without the assistance of counsel is invalid unless there is a waiver of that right. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). A conviction which is invalid under Gideon may not be used to convict an accused pursuant to the Second Offender Act, Section 556.280, KSMo.1969. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). It is now clear that such an invalid conviction may not be used to impeach defendant’s credibility. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972).
The question presented to this court however is whether a defendant, in a criminal trial, may refrain from objecting to evidence of prior convictions, used for the purpose of impeachment, on the ground that they are constitutionally invalid, go through post-trial motions and appeal without raising the issue and then raise the question for the first time on a motion under Rule 27.26.
A defendant is usually in the better position to know whether he had been convicted
Defendant’s failure to raise this issue at some stage of the proceedings in the underlying case constitutes a bypass of orderly state procedure; thus this case is ruled by McCrary v. State, 529 S.W.2d 467 (Mo.App.1975). We can add nothing to the scholarly dissertation of McCrary.
The obligation of raising an issue such as thjs does not place an undue burden upon a defendant in a criminal case. To the contrary it serves to bring about a more expeditious disposition of criminal cases.
The trial court did not err in overruling petitioner’s motion without an evidentiary hearing.
The judgment is affirmed.
. This previous conviction which formed the basis of his conviction under the Second Offender Act is not brought into question here.
. “Q. Have you ever been convicted of anything else whether it was a felony or a misdemeanor, any other felonies or misdemeanors that_other than these two?
A, Yes.
A. I have been convicted for some peace disturbance.
Mr. Bobinette: I would object, your Honor, at this time_may I approach the bench?
The Court: Yes.
(The following proceedings took place at the bench outside the hearing of the jury:)
Mr. Bobinette: My objection is that Mr. Ga-mache is not aware of what the difference is between a misdemeanor and a felony, the peace disturbance which he has related • to could possibly_
Q. (by Mr. Brown) Mr. Gamache, have you ever been convicted of any other felonies or misdemeanors?
Mr. Bobinette: Your Honor, I would object unless they are defined to the defendant, what a misdemeanor and felony is.
Q. (by Mr. Brown) All right. Well, have you ever been_that burglary and assault of a police officer or felony; is that correct?
Mr. Bobinette: Objection, there is no showing of that
The Court: Just ask him, Mr. Brown, and let’s get along with the case.
Q. (by Mr. Brown) All right. Were you convicted in California as a result of this incident occurring on May 13th, 1965, of assault and battery and sentenced to 40 days?
A. Yes, sir.”