*1 Missouri, Respondent, STATE of
Roy HORN, Appellant. F. VAN
No. 62753.
Supreme Missouri, Court of
Division No. 2.
Dec. 1981.
Motion for Rehearing or in the Alternative
Application for Transfer Court
en banc Overruled
Jan. *2 Cohen, Defender, Gary
Clifford A. Public Defender, Gardner, L. Asst. Public Kansas City, appellant. Ashcroft, Gen., Atty. Philip
John M. Koppe, Gen., Atty. City, Asst. Kansas respondent. STOCKARD,Commissioner. was found forgery 570.090.1(4), in violation of § felony. Class The jury RSMO C assessed the at years, to which sentence the trial court added two for a total of four finding apрellant per- after to be a sistent offender. challenge sufficiency
There is to the no jury reasonably could find evidence. A 15,1979, February that on stole a at Andy’s blank from a checkbook check Bar, Harley made payable Jackson Hoe it $286, Ray forged thereon the Gentry for Milbourn, owner signature Andy Bar, Andy’s Hoe cashed the Jackson City. Kansas check at the Bank of Central 83.02, Western Dis- Pursuant Rule Appeals trans- trict of Court of the Missouri Court, and the ferred to this the cause us, consider it being cause we now before original appeal. the same as on discretion, may, asserts that the court errone- its a fine in lieu ously failed instruct the required of, to, or in some cases in addition 557.036.2“as punish- jury. determined ment statute and upon Instruction No. 8 followed MAI-CR2d finding guilt assess declare the 24.20.4, “If jury: you and told the do find punishment as their verdict.” *3 guilty forgery, you the defendant of will 558.011.1(3) Section provides that the au- punishment” assess and declare the at “im- imprisonment thorized term of for a Class C prisonment in the of corrections division felony is “a years term of not to exceed you, years by a term of fixed but not less years.” seven It then provides in subsec- years than to two and not exceed seven tion 2 in felonies, cases of Class C “the the years,” “imprisonment county jail or in court1 shall have imprison discretion to by you, for a term fixed not to exceed but a special year term not to one exceed in the nothing year.”2 one It said about a fine. county jail or penal other authorized insti- * * No. Instruction followed MAI-CR2d provides tution *.” It further if 2.60, jury and “further instructed” the imposes “the court a of imprison- sentence the you guilty forgery “if find defendant of ment for a term longer year upon thаn one * * * as submitted Instruction the court person a convicted of a class C felo- law, may, the the under defendant ny” person the court shall the commit to either: custody the of division of corrections for by term “1. term Imprisonment of not for a fixed less than and court, not exceeding the maximum authorized in the but not to exceed the term (3) 558.011, subdivision of 1 of by jury subsection the § assessed declared its which as years. verdict, noted above is seven Sec- or provides tion person 560.011 that a who has fine, payment “2. The of a the amount been convicted of felony a Class C “may be by of which would be determined the (1) sentenced to pay a fine which does not applicable with accordance dollars; exceed (2) five thousand or If the statutes, or gained offender money has or property “3. imprisonment Both such and the through crime, the commissionof the pay payment of such a fine. amount, court, fixed by the not exceed- your your duty “In deliberations is to ing double the amount of the offender’s determine whether the defendant is gain crime,” from commission of the innocent, and, you if find guilty or him $20,000. and not exceeding Section 560.026 guilty, punish- to assess and declare guidelines contains court in the as- giv- ment as directed in other instructions sessment aof fine. you.” en to It thus appears jury may that the declare appro- 8 and 11 followed the Instructions punishment, reality which in is but a priate pattern pro- MAI-CR2d instructions court, recommendation to the consisting of mulgated by this court. con- imprisonment for a term not to exceed sev- tends, however, pattern instruc- these en We say this declaration a rec- statutes, comply tions do not with be- ommendation may, beсause the court in its cause, discretion, argues, the was not instruct- jury he punishment substitute for the range of by punishment declared of ed as to the authorized jury a term ment in county jail, by jury term of statute in that the not instruct- impris- or a department imposed “thereby onment corrections ed what fine could be assessing different from but and de- greater prohibiting jury than that from addition, jury. declared then claring a fine.” asserts that quotations jail year 1. All italics within have been not to exceed one in the court and not added. jury. in the places option impos- 2. Section 558.011.2 ing special county a sentence of a term the is mandated imprisonment 557.036.2which term of pro- § different from vides: “The court shall jury instruct the as assessed and punishment court, in its discretion and under statu- upon
statute and
a finding
tory guidelines,
option
should have the
assess and
punishment
pаrt
declare the
as a
impose a fine
addition to or
lieu of
* *
verdict,
of their
*.”
specified
term
within
phrase in
limitations.
provisions
The
in 557.036that the court
§
jury
that the
shall “assess and
557.036.2
shall instruct the jury
“range
as to the
declare the
as a
of their
punishment
punishment” and that
shall “assess
neсessarily
only
verdict” must
refer
punishment
and declare the
a part
which the
is authorized
their verdict” were enacted at the same
statute to
As we
determine
declare.
provisions
time as the
in other sections
have construed the sections under consider-
place
court,
which
the jury,
ation,
plan
results for
role of
workable
for a
*4
jury
of
perform
the
and
the court to
their
term,”
“special
and to sentence the defend-
designated
statutorily
functions
the im-
pay
however,
ant
obvious,
a fine.
It is
position
the
of sentences. As construеd
jury
that the
cannot declare as
their
impossible
mandate the
statute does not
punishment
verdict a
by
not determined
punishment
requirement
imposed
that
the
them and
is
which
by
to be determined
by the court after the verdict has been
the court until after the
is
jury verdict
be
rendered
contained
that verdict.3
must
rendered.
provisions
the
are in
point.
We find no merit to this
conflict.
As
the
noted above the statutes and
The primary
of statutory
rule
con
procedural
rules of this court in effect at
struction
a situation such as this is to
the time
the
ascertain and
trial
this case did
give
legislative
effect to.the
require
In
be
it
doing
jury
intent.
instructed that
legislative
so the entire
act
be
imposition by
must
could recommend the
provisions
considered and all
However,
must be
court of a fine.
reasonably possible.
procedure
harmonized if
Every wоrd, clause, sentence,
impo
be
and section of
followed
determination
given
act must be
meaning
punishment
legislatively
some
sition of
within the
unless
it is in
with
prescribed
subject
conflict
legisla
guidance by
ascertained
limits is
tive intent. McCord v.
Missouri Crooked this Court
rule and
In
decision.
Statе
River
Hunter,
Backwater
Ray
1979),
Levee District of
(Mo.banc
v.
Appellant’s specific complaints quest on for a continuance. In order to be appeal ruling are answered set on appeal heard he must have renewed his forth above. But in order to instruct the motion Judge for a continuance before Lev jury fully, they more should also be in Smith, itt. v. 722 (Mo.App. State 59 S.W.2d structed they may recommend to the 1933); Blitz, Mo. S.W. court that it impose a fine within the statu (1903). point This is without merit. tory limits in lieu of any or in addition to Appellant also asserts that the court term imprisonment they may declare. It extending erred in his term of suggested is therefore that until the Com years beyond ment two the two as- mittee on Charges Pattern Criminal impris- sessed for a sentence of Instructions takes further action in this onment for a total of four matter, MAI-CR2d 2.60 should be modified in similar cases to add thereto a fourth argues that under Instruction subparagraph reading as follows: patterned after MAI-CR2d 2.60 and аddition, above,
“4. jury set out was told that you may recommend either, might assess a fine in lieu of Im- any him to “1. any or in addition to im- prisonment court, for a term fixed prisonment you may which declare. The but not to exceed the term assessed and * * maximum fine which the court may im- in its verdict pose is an amount not ex- $-[or argues having further so ceeding double the amount of defendant’s instructed the the court erred in add- gain from the commission of a crime].” *5 ing two a appellant’s to sentence as persistent pursuant offender to 558.016 next asserts that he is entitled in “Had to RSMо. He asserts his brief: judgment have the reversed because the judge, impose trial who known disqualified upon had been could application assessed, change for of judge, greater may over- than that appellant’s ruled application for a continu- county wеll have assessed a term in the ance. noted, jail.” previously opinion As in our to a sentence of The case pending before Judge jail only ment in county lies with the Marsh, disqualified who upon appel- himself court and not with the notwithstand- lant’s request and transferred the case to ing language contained in MAI-CR2d Division No. 17 presided which was over jury could not have 24.20.4. Judge Levitt. The case was docketed for county jail,” “assessed a in or if it term the trial in beginning the week October 15. so, purported had to do at most it would Appellant moved for a continuance for one month, nonbinding have been a recommendation. Marsh, Judge sitting who was special on assignment in Division No. 17 might The have reduced the appellant’s overruled motion. The pro- case basis to a sentence declared ceeded to trial Judge befоre Levitt on Octo- court, re county jail. term in the Or the ber 16 and 17. gardless Appellant correctly asserts that a verdict, might jury’s have extended disqualified judge power has no further under the term more than two case, act in except to transfer it to anoth persistent possi оffender statute. These judge. State, er Hontz v. being open, say bilities we cannot there was (Mo.App.1978). Therefore, the action of the misinfor any prejudice appellant by Judge overruling in Marsh motion for a given jury by mation Instruction continuance nullity. Appellant, was a how Johnson, See State v. 615 S.W.2d ever, complain. cannot proceeded He (Mo.App.1981), Washington trial Judge before Levitt without renewing 623 S.W.2d567 (Mo.App.1981). motion, his and without protesting the ac tion Judge overruling Marsh in his judgment re- The is affirmed.
PER CURIAM: dence he was denied counsel. cases relied on there was an affirmative opinion STOCKARD, The foregoing was not showing repre- defendant C., adopted the opinion of the court. sented counsel earlier convictions. That is here. not WELLIVER, J., P. and HIGGINS and SEILER, JJ., concur. Even if it should be shown that Exhibit No. should not have been received ON MOTION FOR REHEARING evidеnce, its admission not result did
PER CURIAM. injustice” to appellant. “manifest There prior unchallenged were two other convic In his rehearing motion for or vintage tions of were ad more recent banc, alternative to transfer to the Court en mitted. Because them the court could appellant contends we did not consider his up have assessed an extended term contentions, made the first time only years. It added brief, supplemental that Exhibit 5No. did “adjudged show he was to be con- showing injustice There is no of manifest prior victed” of the obtaining offense of 29.12(b), within the meaning Rule money by pretenses, prior false one of the point supplemental brief is with- finding appel- felonies authorize the out merit. offender, persistent lant awas and that the Appellant’s rehearing motions Exhibit did not show to have been cause alternative to transfer the represented by counsel. These contentions Court en banc are overruled. preserved were review, appellate but appellant asks they be reviewed as a of plain
matter resulting error in manifest
injustice. 29.12(b). Rule
Exhibit No. 5 does not contain copy judgment entered, but it does contain a
copy appears committment in which
the statement appellant pleaded guilty charged offense and was sentenced Missouri, Respondent, STATE of to be confined imprisoned specific for a v.
term. made no challenge cor- rectness this statement. a chal- Without WEBBS, J. Melvin Melvin a/k/a lenge the trial court was find Sax, Appellant. that appellant had been convicted 62751. of obtaining money offense pre- false tenses. Missouri, Supreme Court of No. 2. Division prior
A may conviction not be used enhance if that conviction 14, Dec. 1981. was constitutionally invalid because the de Rehearing or in the Motion for Alternative fendant was right denied the to counsel. to Court Transfer Tucker, United States v. 443, 404 92 U.S. en banc Overruled 589, (1972); Burgett S.Ct. v. L.Ed.2d 592 Jan. Texas, 258,19 U.S. S.Ct. L.Ed.2d Alberts, (1967); (Mo.App.1975). But in there is no showing appellant
affirmative represented Defender, Cohen, Gary counsel when he entered a A. Public Clifford Defender, plea Gardner, to obtaining money by false L. Asst. Public Kansas pretenses, City, appellant. offered no evi-