Halley v. StateHalley v. State
- Reporters:
- Before:
- Houser
This is an appeal by George Daniel Halley from an adverse judgment in a proceeding under Criminal Rule 27.26, V.A. M.R., filed by him to vacate or set aside a judgment of conviction and 3-year sentence entered on his plea of guilty to a charge of carrying a concealed weapon. This Court has jurisdiction under Section 3 of Article V, Constitution of Missouri, 1945, V.A.M. S., as provided by that section prior to the amendment adopted at the special election of August 4, 1970, since the notice of appeal was filed prior to January 1, 1972. Article V, § 31.
From the file in this case and appellant’s brief it appears that appellant has served the sentence imposed in this case, is no longer incarcerated thereunder and was finally released on March 17, 1972, during the pendency of this appeal. Instead of disposing of the appeal, however, on the ground that the case is moot, under State v. Brookshire, Mo.Sup., 377 S.W.2d 291, we will treat the motion to vacate or set aside sentence as an application for a writ of error coram nobis to attack the conviction itself, as we have done on several occasions, Laster v. State, Mo.Sup., 461 S.W.2d 839; Holt v. State, Mo.Sup., 433 S.W.2d 265; State v. Carter, Mo.Sup., 399 S.W.2d 74, and State v. Garner, Mo.Sup., 432 S.W.2d 259, 261 [4], since the requirements laid down in State v. Stodulski, Mo. Sup., 298 S.W.2d 420, 424, for availability of the writ of error coram nobis are present in this case.
The sole question is whether appellant was deprived of his liberty without due process of law in violation of constitutional requirements for failure of the court to make an order on its own motion directing a psychiatric examination of accused under
In determining whether the court abused its discretion in not ordering a psychiatric examination pursuant to
Prior to the hearing of May 11 appellant’s attorney, Mr. Harris, was informed by the family that appellant had voluntarily submitted to treatment by and was under the care of a psychiatrist. At that hearing *7Mr. Harris informed the court that appellant had a medical condition; that he had suffered a complete nervous breakdown worrying about this case and that he was under the care of a doctor, taking treatments at Malcolm Bliss Hospital. Mr. Harris did not inform the court that appellant had a mental condition, disease or defect nor did he suggest or file a motion under
Nine days later (May 20) the psychiatrist, Dr. Schuckit, wrote a letter to attorney Harris stating that appellant “does have a mental illness”; but that “he * * * does have the capacity to understand the proceedings against him and is able to assist in his own defense”; and that at all times he knew right from wrong. The doctor urged further medical attention and strongly suggested out-patient care under the then-existing medical regimen.
Appellant reappeared before the court on June 26 for sentencing. When granted al-locution neither he nor his attorney suggested mental illness as a reason why sentence should not be pronounced. Nor did anyone tell the court that appellant was then suffering from mental illness. Mr. Harris did tell the court that he had learned that appellant had been treated at Malcolm Bliss Mental Health Center, and transmitted to the court Dr. Schuckit’s recommendation that appellant be given continued out-patient care under the existing medical regimen, and recommended probation so that appellant could care for his family and continue the out-patient treatment under which appellant was progressing favorably. (The doctor had not sent the judge a copy of his report, as requested by Mr. Harris, and Mr. Harris did not supply the court with a copy at the hearing. The record does not disclose whether the judge was supplied with a written pre-sentence report, or what any such report may have contained.) Mr. Harris testified that he did not file a motion for a psychiatric examination under
The foregoing is not sufficient to require a finding, as a matter of law, that the judge had reasonable cause to believe that appellant had a mental disease or defect excluding fitness to proceed, or to raise a bona fide doubt as to his compe*8tence to proceed. On two occasions the judge saw appellant in the courtroom, observed his actions and demeanor, and by-interrogation tested and had an opportunity to appraise his mental ability and fitness to proceed. Although the court was informed that appellant was under medical treatment at a mental hospital there was no intimation by appellant, his counsel or family that appellant had a mental disease or defect excluding fitness to proceed. Notwithstanding the court was informed that appellant had experienced a nervous breakdown, the only specific information given the court indicated that appellant’s problem was alcohol; that he was “progressing well” and that the doctor thought appellant “can be cured as an out-patient” at the hospital. There is nothing in the record to indicate that appellant’s mental illness “in any way interfered with his cooperating with his counsel and assisting in his defense.” State v. Harris, Mo.Sup., 477 S.W.2d 42, 45. No circumstances came to the attention of the court which in any way cast suspicion on the opinion of the doctor, or that of the lawyer, that appellant was mentally fit to proceed. See Green v. United States, 128 U.S.App.D.C. 408, 389 F.2d 949, 955.
On July 1, five days after sentence was passed, the doctor wrote the judge a letter by which the court was informed for the first time that appellant was suffering from mental illness, diagnosed as paranoid schizophrenia; that since treatment at Malcolm Bliss appellant had done remarkably well with medication and out-patient therapy; that with his response there was no indication for further mental hospitalization at that time, but that in his opinion appellant would have difficulty adjusting to confinement in a penal institution and his first recommendation was parole with continued out-patient therapy at the hospital or, as next best, medication in prison and special scientific occupational assignment in prison so as to keep him occupied as much as possible. Nothing in the letter indicated that appellant’s mind was affected in such manner as to interfere with his capacity to understand the proceedings against him, or to assist in his own defense, or to exclude fitness to proceed. The letter of July 1 alerted the judge to the existence of a mental disease but there was still nothing before the judge giving him reasonable cause to believe that appellant’s mental condition was of such seriousness or gravity that action should have been taken under
We find no facts which, if known to the court at the time, would have prevented the acceptance of the guilty plea and entry of a judgment of conviction, and therefore the judgment on the motion to vacate or set aside, treated as an application for a writ of error coram nobis, was properly entered and is affirmed.
STOCKARD, C., concurs.PER CURIAM:
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
All of the Judges concur.