State v. White

559 S.W.2d 76 | Mo. Ct. App. | 1977

DIXON, Judge.

Defendant appeals a conviction for speeding. A radar unit check of the defendant’s speed was the only evidence. Complained of is the failure to establish the accuracy of the instruments utilized to test the radar unit.

Only defendant has briefed the case. The Prosecutor has filed in this court a confession of error asking the reversal and remand of the case for a retrial, confessing the validity of the defendant’s claim. Controlling is City of Ballwin v. Collins, 534 S.W.2d 280 (Mo.App.1976). The facts as gleaned from this record are identical with the facts in Ballwin where a reversal of the judgment occurred.

Our failure to accept the confession of error offered by the Prosecuting Attorney is based upon defendant’s insistance that the reversal be outright and not by way of remand. In this case, the conventional rule requiring remand for new trial when it appears that the deficiency in the evidence may be supplied on retrial will be followed. State v. Brown, 542 S.W.2d 789 (Mo.App.1976); State v. McIntosh, 542 S.W.2d 363 (Mo.App.1976); State v. Sockel, 490 S.W.2d 336 (Mo.App.1973).

The judgment of conviction is reversed, and the cause is remanded for new trial.

All concur.