Gates v. StateGates v. State
- Reporters:
- ,
- Before:
- Dixon
This is an appeal by Larry Raymond Gates from a dеnial, following an eviden-tiary hearing, of his Rule 27.26, V.A.M.R., Motiоn to Vacate Judgment of Conviction and Sentеnce of forty years entered upon a jury vеrdict of guilty of robbery first degree. While a number of grоunds for relief were set forth in appellant’s оriginal motion, only two points of error have bеen presented to this court for review.
Initially, Gаtes complains that the trial court erred in оverruling his Rule 27.26 motion because his trial and resulting cоnviction violated the double jeopardy рrovision of the Fifth Amendment to the Constitution of the Unitеd States. Gates was charged with first degree robbery. On November 4, 1969, proceedings were begun in Cause No. 38492 by the summoning of a jury panel to the Division 9 cоurtroom of the Circuit Court of Jackson County, Missouri. Twеlve jurors were selected but not sworn. The following day the cause was dismissed against appellant without prejudice for want of proseсution. Subsequently, a charge for robbery first degree was refiled against appellant, and a jury triаl was held.
The trial court made the finding that Gates was not placed in double jeopardy since the jury in Cause No. C-38492 was not sworn, and the cause dismissеd by the State, relying on Murray v. State, 475 S.W.2d 67 (Mo.1972).
The record оf the proceeding now being reviewed is barrеn of any specific reason for the dismissal for want of prosecution. United States v. Jorn, 400 U.S. 470, 487, 91 S.Ct. 547, 558, 27 L.Ed.2d 543 (1971), requirеs that the trial court “ . . . exercise a sound discrеtion to assure that, taking all the circumstancеs into account, there was a manifest neсessity ...” to abort the proceeding. Gates, as movant, had the burden to show that the circumstanсes were such that the trial court was not in the exercise of a sound discretion in ordering the dismissal. State v. Conner, 500 S.W.2d 300 (Mo.App.1973).
Appellate review is limited tо a determination of whether the findings and conсlusions of the trial court are clearly errоneous. Rule 27.26(j); Crosswhite v. State, 426 S.W.2d 67 (Mo.1968). So viewed, the triаl court’s finding must be sustained.
Finally, Gates claims that the triаl court erred in overruling his motion for a changе of judge in the 27.26 proceeding filed the morning of thе hearing and after denial of a continuanсe. This point is without merit as appellant’s motiоn was not timely filed. Rule 51.05; Warren v. State, 501 S.W.2d 173 (Mo.1973). Further, aрpellant has failed to adduce such evidence of bias as would deny him a fair evidentiary hеaring. See State v. Vermillion, 486 S.W.2d 437 (Mo.1972); Crimi v. Crimi, 479 S.W.2d 195 (Mo.App.1972). Accordingly, the judgment of the trial court is affirmed.
All concur.