Bibbs v. State

Supreme Court of Missouri

Bibbs v. State

476 S.W.2d 590, 1972 Mo. LEXIS 1201

CourtSupreme Court of Missouri

DecidedFebruary 22, 1972

DocketNo. 57011

StatusPublished

Cited by9 cases

This text of 476 S.W.2d 590 (Bibbs v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bibbs v. State, 476 S.W.2d 590, 1972 Mo. LEXIS 1201 (Mo. 1972).

Pincite

Opinion

HOLMAN, Presiding Judge.

Movant has appealed from an order of the circuit court dismissing his motion to [591]*591vacate filed pursuant to S.Ct. Rule 27.26, V.A.M.R.

On November 14, 1966, movant entered pleas of guilty to three felony charges and was sentenced to two years’ imprisonment for each offense, the sentences to run concurrently. His motion to vacate those sentences was filed in February 1971. The State filed a motion to dismiss because the sentences had been completely served. Upon the hearing of that motion movant testified that his attorney had advised him to ask the court to consider his motion as a proceeding for writ of error coram nobis, but notwithstanding that advice he did not want it so considered and wanted it submitted under Rule 27.26. The court thereupon sustained the motion to dismiss. Movant has appealed. We affirm.

Supreme Court Rule 27.26 provides that “[a] prisoner in custody under sentence * * * may file a motion * * * to vacate * * Since movant was not in custody under the sentences he sought to vacate the court properly dismissed the motion. Upon this appeal, however, mov-ant’s counsel contends that the court erred in not considering the motion as one seeking a writ of error coram nobis despite movant’s stated opposition to doing so. He cites State v. Carter, Mo.Sup., 399 S.W. 2d 74. In that case the court, at the request of movant, considered a 27.26 motion as an application for coram nobis and therefore the case has no application to the situation before us. There are, no doubt, situations where it is appropriate for a court to consider a 27.26 motion as a coram nobis proceeding. However, in a case such as this one, where the movant expressly opposed such action, the trial court acted properly in refusing to so consider the motion.

Judgment affirmed.

SEILER, J., and SMITH, Sp. J., concur. BARDGETT, J., not sitting.

Free access — add to your briefcase to read the full text and ask questions with AI

HOLMAN, Presiding Judge.

Movant has appealed from an order of the circuit court dismissing his motion to [591]*591vacate filed pursuant to S.Ct. Rule 27.26, V.A.M.R.

On November 14, 1966, movant entered pleas of guilty to three felony charges and was sentenced to two years’ imprisonment for each offense, the sentences to run concurrently. His motion to vacate those sentences was filed in February 1971. The State filed a motion to dismiss because the sentences had been completely served. Upon the hearing of that motion movant testified that his attorney had advised him to ask the court to consider his motion as a proceeding for writ of error coram nobis, but notwithstanding that advice he did not want it so considered and wanted it submitted under Rule 27.26. The court thereupon sustained the motion to dismiss. Movant has appealed. We affirm.

Supreme Court Rule 27.26 provides that “[a] prisoner in custody under sentence * * * may file a motion * * * to vacate * * Since movant was not in custody under the sentences he sought to vacate the court properly dismissed the motion. Upon this appeal, however, mov-ant’s counsel contends that the court erred in not considering the motion as one seeking a writ of error coram nobis despite movant’s stated opposition to doing so. He cites State v. Carter, Mo.Sup., 399 S.W. 2d 74. In that case the court, at the request of movant, considered a 27.26 motion as an application for coram nobis and therefore the case has no application to the situation before us. There are, no doubt, situations where it is appropriate for a court to consider a 27.26 motion as a coram nobis proceeding. However, in a case such as this one, where the movant expressly opposed such action, the trial court acted properly in refusing to so consider the motion.

Judgment affirmed.

SEILER, J., and SMITH, Sp. J., concur. BARDGETT, J., not sitting.

Cite This Page — Counsel Stack

Bluebook (online)

476 S.W.2d 590, 1972 Mo. LEXIS 1201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bibbs-v-state-mo-1972.

Opinion

Related

Cite This Page — Counsel Stack