Johnson v. State

475 S.W.2d 101 | Mo. | 1971

PRITCHARD, Commissioner.

Appellant was convicted of burglary and stealing and was sentenced respectively to eight and four years imprisonment; to run concurrently. The convictions were affirmed, State v. Johnson, Mo., 454 S.W.2d 27.

The only point presented on this appeal from an order overruling appellant’s motion to vacate and set aside his sentence under Rule 27.26, V.A.M.R., is that the court erred in denying his motion for leave to amend his Rule 27.26 motion. The proffered amendment alleges only that appellant was not arraigned in open court, nor was the information read to him, nor was he called upon to plead thereto.

It is obvious that appellant was entitled to no relief under his requested amendment as the trial court found. Rule 25.04 provides in part: “ * * * If a defendant is tried as if he had been arraigned and entered a plea of not guilty, the failure of the record to show arraignment and the entry of such plea shall not constitute reversible error.” The rule has been followed in these cases: State v. Fenner, Mo., 358 S.W.2d 867; State v. Davenport, Mo., 360 S.W.2d 710; and State v. Miles, Mo., 364 S.W.2d 532, 9 A.L.R.3rd 1266. The court, therefore, did not err in denying leave to amend the motion on the asserted ground.

BARRETT and STOCKARD, CC, concur.

PER CURIAM:

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

All of the Judges concur.