State v. WalkerState v. Walker
- Reporters:
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- Before:
- Billings
Defendant Randolf Dean Walker was court-tried and convicted for escape from confinement [
Following defendant’s arraignment in circuit court on the original informаtion and his case being set for trial, the defendant filed a written waiver of triаl by jury which was assented to by the trial judge. Rule 27.01, V.A.M.R. Thereafter, and four days before the trial, the State filed a motion to file an amended information and gаve notice of the same to the defendant. The amended information alleged defendant was a persistent offender by reason of his priоr convictions for five felonies and subject to sentencing as such under
On thе day of trial the defendant objected to the filing of the amended informаtion, contending the State need only prove two prior convictions to demonstrate he was a persistent offender and the listing of the remаining felonies was prejudicial to him. The court permitted the amended information to be filed, the defendant waived formal reading of the amended information, plead not guilty, and announced ready for trial. Following the рresentation of evidence, the court found defendant guilty on the esсape charge. The State then presented evidence defendant was a persistent offender. The court found and determined him to be a persistent offender and imposed sentence.
As is often the case when an indigent defendant’s trial attorney is relieved of the laboring oar and different counsel is appointed to prosecute the appeal, defendant seeks to broaden the scope of his trial objеction. Such is the case here, where the contention is advancеd that permitting the filing of the amended information was erroneous because the defendant’s waiver of trial by jury was directed to the original information and the amended information increased the maximum punishment.
Defendant’s рoint is without merit. With rare exceptions not applicable here, to preserve error, even though it has a constitutional basis for direct rеview, timely objection must be made stating the basis for that objection. Bryant v. State, 604 S.W.2d 669 (Mo.App.1980). The defendant was aware, prior to the trial date, of the additional allegations in the proposed amended information. At the outset of the proceedings, on the date of the trial, the court noted defendant had filed a written waiver of trial by jury. Before ruling the amended informatiоn could be filed, the court was advised defendant’s attorney had gone оver the amended information with the defendant. Formal reading of the *560amеnded information was waived, and after defendant’s plea of not guilty, defеndant announced ready for trial. Defendant had ample opportunity to move to withdraw his written waiver of trial by jury but chose not to do so. Under the circumstances, the trial court was under no duty or obligation to sua sponte determine if dеfendant then wanted a trial by jury and defendant’s present effort to sandbag the trial court must fail.
Furthermore, the amendment to allege defendant was а persistent offender changing the possible punishment to be administered by thе trial judge after a determination of guilt on the escape chargе, is not an additional charge within the meaning of the statute. State v. Morton, 338 S.W.2d 858 (Mo.1960) (habitual criminal act); State v. Wilburn, 575 S.W.2d 914 (Mo.App.1978) (second offender act). Whether guilt is determined by a jury or the court, the matter of sentencing under the persistent offender statute is for the trial court.
The judgment is affirmed.
PREWITT, P. J., MAUS, C. J., and HOGAN, J., concur.