Garrett v. State
459 S.W.2d 378
Mo.
1970
Check Treatment

*1 cases, specifically provided. For ex- Employ- may be tion Section 288.210 in (2) cases, ample, Hearing Security the “Administrative ment or Section 386.510 Com- (3) 161.252, mission,” authorized Section pertaining Commis- Public Service many agencies sion, involving listed general pertaining those rules before 161.272, agencies governed Section is Section are to review of administrative provides: provisions “The 161.322 which inapplicable. authority No is cited RSMo, amend- chapter any be argument, do nor we believe can thereto, provisions except those ments Authority contrary to this ar- sustained. are conflict Day amendments which ex gument may be found in State rel. 161.342, any civil here- rule Mo.App., 161.252 to County, of Platte County Court applica- adopted supersedes an after sought appeal was 178. An 442 S.W.2d chapter apply to provision ble shall county zoning au- from an order of the proceedings govern of the adminis- thority provided Section 64.660. rights and the commission section, trative although detailing This much parties followed, involved.” duties procediire had time be no asking for judicial limit on review. procedure specific for review of an City Appeals ruled that Kansas Court of decision of the State Tax Com- assessment by looking such a met void would be paragraph Section mission found in 4 of general review act administrative 138.470, inclusive, controlling, being is all 64.660, said, (Chapter 536), and “Sections is property” real and since “assessment of in pari and 536.110 are materia real be “where the review must involved together.” be construed should is situated.” With real estate property provisions being general result court of being County, Dent circuit day time (thirty limit) for review County can not entertain St. Louis provisions supplement special used to petition for review. particular pertaining to administrative agency. prohibition provisional rule Our absolute.

made Our effort to answer ar each All concur. gument respondent prob made lem sound more than it is. difficult When body any court review of administrative sought, logical it is first see there if provisions any specific

are for the same relating particular

in the statutes

agency. provision may be Such all inclu sive, example per Section 386.510 in GARRETT, Lonnie Garrett Irby, Movants-Appellants,

connection Public Service Com mission, procedure and the provid therein ed should be followed. See State ex rel. Missouri, Respondent. STATE of Hall, Mo., Wiggins 106, per No. 55507. taining Liquor Department. If such specific provisions do not detail factors Supreme Court involved, general provisions then No. Division 2. Supreme Rule Court “Administrative 9, Nov. Review,” supplement should be followed to inadequacies Day such done case, supra. Lastly, some administrative special provisions judi

bodies have governed

cial and the procedure review 100, except exceptions

by Rule as to such

BARRETT, Commissioner. Irby Sam Lonnie and Joe robbery Garrett were found degree they the first and since had felony January convictions 25, 1966, punishment: fixed their Joe years’ imprisonment, Sam years. and Lonnie 20 Their convictions appeal and sentences were affirmed on Garrett, Mo., in State v. 416 S.W.2d 116. sufficiency of the amended informa- appeal tion was not considered on that respect aside from the allegations with felony the transcript records appeal on that it alleged shows that 27, 1965, on October the three of them “did then unlawfully, and there feloniously, wilfully rob, take, maliciously and steal and away carry money the lawful personal and property Larry Richards, of one the said Larry Richards then and there in possession and control a sum certain money, wit, $6.00, by put- the sum of ting Larry the said Richards in fear of immediate injury to his life and limb person, by then and there pointing at and Larry towards the said Richards a certain dangerous deadly wit, weapon, to twenty- n caliber revolver, they, which * * * said Garrett Joe * * * Irby Garrett Sam and each them, then and there had and held in hands, and then and there $6.00 good money and lawful of the United States, $6.00, and of the money value of personal property Larry said Richards, person, from the presence against Larry of and the will of the said Richards then and there force and vio- person Richards, lence Larry said by putting Larry said Richards in injury fear per- of some immediate to his son, wit, by the means and use aforesaid, twenty-two caliber fe- revolver rob, steal, loniously carry did take and O’Herin, Madrid, ap- Edward F. New for * * away Despite its archaic pellants. lixity charged information the sub- Danforth, Gen., robbery Atty. stantive offense in the first de- C. Dale L. John gree Rollings, Atty. Gen., City, there would have been reason Asst. Jefferson attacking respondent. basis their trial counsel it. Reed, Mo., 71; jury. aside in- State new trial superable difficulty with the claims of Jaeger, 394 S.W.2d robbery Billy Joe, and Lonnie instituted and Sam is that fel- proceeding attacked case the state numerous other procedure sufficiency ony of the evi- and these convictions with *3 prior felony proved prin- were and found in the respect their counsel to dence upon cipal by judge trial the well records and the the habitual invocation of 1969, 556.280, they proceeding and are criminal V.A. this RSMo § there was M.S., hearing appeal, rep- challenged As to and a and here. after Joe counsel, with counsel burglary conviction by present a 1954 resented their or- of and sentence denying post-conviction by jury der af- a in Louisiana a relief was a there was eighteen months. In 1959 firmed in 435 State v. a of murder and sentence of conviction 662. from which imprisonment in Louisiana life April they In this a 1969 instituted sec- Irby's or “Sammie" escaped. to he As Sam proceeding ond 27.26 in which because of convictions, counsel, al- were prior Texas, 109, Burgett v. 389 U.S. 88 S.Ct. in in Florida found and leged, established 258, 319, they again 19 challenge L.Ed.2d in robbery a conviction April and 1959 the invocation of second offender act circumstances In these in 1962. California in their robbery challenge The trial. of Sam, their cases and as to Joe respect the motion as to is with Joe the amendment after in 1966 tried been Mississippi County to a 1952 conviction (RSMo in 1959 criminal the habitual act of “jailbreak.” and sentence allega- were prior offenses 1969, 556.280), § tion that he had waived and jury, to submitted by or not found record, represented, by despite the court by found separately they were Irby counsel. Sam for the same reason application Texas Burgett v. and challenged stealing a of 1956 conviction affirmed. to them of relief denial and the same automobile. And Lonnie on Stacks, 408 5 Compare Beto ground and lar- burglary attacked 1959 Wash., P.2d Haislip, 313; County. Mississippi In ceny in conviction aon be noted 284, should of which both they in- now also claim this connection rehearing case. of Lonnie’s their of effective counsel assistance severance, thus and lawyer did not obtain a to situation as precise This is not the felony records by their reason of prior convic- Lonnie, only him one as to testify in right “deprived the to and found established alleged, tion was of the con- own behalf because burglary to plea guilty of was a and the other co- being prejudicial victions two of and sentence case, the crux Thus defendants.” on Mississippi County in offense each issues, they whether of all dispositive in in case his 1959. June in by one were in counsel fact “comes recites here conviction and alleged, proven or more of the and court- * * * herein, person in defendant found felonies. Russell, his B. presence T. and in the Russell, court, open in T. B. attorney, Court, having allegations member of the of this throughout In their Bar by indicated, appointed the Court to proceeding, been of this heretofore ** represent Irby defendant only Garrett and attack Joe County problem in Mississippi arises these circumstances: state and introduced in claiming those cases “H”, proceeding, they were not in this exhibit “HH”, principal trial exhibit the informa- Texas en that under are tion, Lonnie’s robbery sentence to have the convictions set titled burglary and stealing 9, 1959, sentence to- plea entered a June gether with Department Corrections’ stealing Mississippi transcript prison of his County; dis- (Exhibit HH) charge on September In this was as follows: “Now day comes the * * * ceeding, attempting testify in State also comes the defendant * * * support motion, his identified himself herein, in person and in the lawyer and when his directed his attention presence Russell, of T. B. his attorney, in paragraph 9(a) of motion and the open Court, Russell, T. B. member allegation that he was not Bar this Court (this italics attorney prosecuting Court) having heretofore appointed been objected “as objected we have to the other represent Court the defendant * * (Billy two witnesses Sam), its conclusions of law the *4 this best is the record. The court noted as their to claim noof counsel speaks itself, it is the best invalidating thus prior for convictions: itself therefore, any object we to “We find Missouri holding cases testimony place about what took at there is requirement.” such a The court original The sentencing.” court sustained “However, added: the facts in this case objection “as to those matters where do riot bear out the contention of the mov- being there are records available as ants.” Nevertheless the court concluded theory best evidence.” The the state of “The exhibits introduced at their trial and * * n is objection best indicated in the to again at their hearing herein show testimony that he without oral was (3) as to Lonnie when he Joe’s entered Honor, in counsel 1952: “Your on behalf plea of burglary stealing to State, object are going of the we to to in Mississippi 9, County, on June testimony speaks this because the record 1959, and was years sentenced to two for itself, and the records are available and stealing, and two original filed in the The rec- were case. represented Russell, was by T. B. a member showed whether or not this man was ords (Exhibit HH.)” of the court bar. The represented by counsel.” The court ruled convictions, prior then referred to other theory basic and this was court’s only being required one invoke throughout: “The record would be the said, “Those habitual criminal evidence; any doubt about there isn’t best facts were true three movants” com- The made no additional that.” court though only prior even conviction one conviction, the ruling on Lonnie’s ment in was or shown as to Lonnie. ruling in on of- court did add Joe’s give testimony only would not The in brief fered “The Court state its as to Lonnie weight, really, weight any or much says that trial court found to be a “the be testimony record could where represented matter record that he was of testimony by this wit- rather than duced by in his counsel one conviction.” ness, sustained and objection will be so commenting From court’s statement in proof stand as been may the record on offer of could be of- Joe’s however, least, be objection will fered, argued, impliedly but the that as in Wal Mo., State, Thus supplied.) “court (Emphasis ster 438 S.W.2d the sustained.” v. testimony part Lonnie as well as of did this of movant’s of not believe tes despite the record timony.” say And this is not to that the and Sam in by finding may the factual court not make against convictions credibility 1952 and Missouri the witness as on proof.” difficulty here is permitted only as an “offer was solemn record. problem certainly find subject matter and no such To make the that as to Lonnie its detailed in state cites no perfectly spelled clear ing was out. cases, that on found in addition Walster finding of fact as to Lonnie federal Keeble, the state on emphasis case relies State v. resented.” (406 F.2d 1. c. supplied.) 118. The Keeble excerpts case These brief are suffi Burgett antedates v. Texas neces- cient to demonstrate that court did sarily by fact, modified necessary finding has been that case make the fact, well as others. that in his 1959 conviction bur glary Lonnie was type It is not the counsel. factual distinguishable v. Texas finding federal courts will there silent was defer, D.C., Swenson, Goodwin 287 F. “(p) resuming waiver of counsel from Supp. of the 169. In view available impermissible.” must It silent proof another or further Lon added, however, prosecuting be may expensive nie’s case be exercise theory in in attorney’s proceeding, fact, futility finding as a contrast objection, contrary dicated applica solely to a based finding theory Burgett v. Texas. basic of the tion from the evidence best law of controlling principles are set case rule, that he February opinion in the forth required by 1959 is Losieau Appeals, Losieau Eighth Circuit Court controlling Sigler and other cases. 795, involving Sigler, Ne nine more judg- views the *5 accordance these criminal habitual The Nebraska braska. ments as Garrett that unlike Missouri’s act is Irby are while the affirmed sought aside cer prisoner to set case the to Lonnie Garrett is reversed and remand- that under felony convictions so tain ed for a finding of fact con- law his sentences would the Nebraska sistent opinion with this and particularly than It rather in 1987. in 1982 terminate Sigler Losieau v. Stacks, and Beto v. the circumstances necessary to detail supra. length, it at quote from of that case or however, does, underlying apply the STOCKARD, C., concurs. aAnd principles of v. Texas. when a record is made

distinction showing record shows no PRITCHARD, C., sitting. record, here, af counsel: “Where was firmatively accused demonstrates PER CURIAM. counsel, petitioner has impeaching the record.” burden of BARRETT, The foregoing opinion by And cir (406 801.) C., 1. c. is adopted opinion as the of the court. peti court finds that cumstance when the find his burden and tioner has not met MORGAN, DONNELLY, J., J.,P. not be record will supported “the ing is SPRINKLE, Special Judge, concur. when “the But overturned.” at a presence of counsel silent as “Burgett stage” sentencing) (there FINCH, separate

critical con- J., concurs holding where that be read as must curring opinion filed. accused an as to whether is silent stage counsel at. critical

was furnished FINCH, (concurring). Judge introduces accused where opinion herein principal he not in was I concur tending to show fact it holds that understanding that burden then with the so represented, shifts an on remand to is entitled preponderance Lonnie Garrett to prove, by the state a fair of whether evidentiary hearing the issue evidence, rep- was that the accused represented by the time at was his conviction of 1959, and that the case is remanded finding merely for a fact on issue. evidentiary

Defendant entitled right

hearing, which he has the to tes-

tify as to whether he had counsel has right

case. He undertake to

impeach the court record which recites T. B. V.A.M.R.;

Russell. Rule 27.26(e), S.Ct. Garner, Mo., 155. The

question of whether defendant had counsel

is a fact issue for determination

trial on the basis court rec- such

ord and other evidence as is offered. observes, principal opinion

As properly here, affirmatively

“Where

demonstrates accused was counsel, petitioner burden of

impeaching the Sigler, record.” Losieau v. 406 F.2d

Ex James L. parte McMULLIN, Petitioner,

Harold D. Sheriff SULGROVE, Audrain County, Respondent.

No. 55471.

Supreme Court of En Banc.

Nov.