Britt v. State
This text of 587 S.W.2d 638 (Britt v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Movant appeals from the denial of his Rule 27.26 motion alleging that the trial court erred in denying relief under the motion without evidentiary hearing. We affirm.
Movant pleaded guilty to a two count information charging second degree burglary and stealing in the first count and tampering with a motor vehicle in the second count. He was sentenced concurrently to ten years imprisonment for the burglary and five years for the two other offenses. His 27.26 motion and appeal allege: (1) that his plea was involuntary as it was made in reliance of his counsel’s assurance that he would receive a lesser sentence; (2) ineffective assistance of counsel in failing to seek dismissal of the information as based on an improper joinder of offenses.
Movant’s complaint that he was entitled to an evidentiary hearing is without merit. The record of his guilty plea, through straightforward inquiry by the trial court, manifestly refutes his contention that he was disabused of any reasonable belief that he could possibly have entertained any notion of a lesser penalty as a result of his attorney’s false assurances.1 [640]*640Johnson v. State, 579 S.W.2d 802 (Mo.App.1979). Hence, he was entitled to no eviden-tiary hearing on his motion. Wilson v. State, 582 S.W.2d 725 (Mo.App.1979); Beaver v. State, 552 S.W.2d 36 (Mo.App.1977); Giggar v. State, 547 S.W.2d 870 (Mo.App.1977).
Schellert v. State, 569 S.W.2d 735 (Mo.banc 1978), and McMahon v. State, 569 S.W.2d 753 (Mo.banc 1978), which provide that a movant should be afforded the opportunity to withdraw his plea where disposition of the case is less favorable than contemplated by the plea agreement or recommended by the prosecutor, are not applicable here. In this case, it was evident that movant’s punishment was what he bargained for. The trial court’s action in denying the motion or refusing to allow a subsequent withdrawal of the plea a month later is not incongruent with Schellert and McMahon.
Movant also urges ineffective assistance of counsel by reason of his attorney’s failure to seek dismissal of the information, which he argues improperly charged three separate offenses arising out of the same transaction. The information was in two counts, the first charging movant with breaking into a building and stealing property belonging to William Strong, Jr. The second count charged him with the unauthorized tampering with a motor vehicle by using and operating a Jeep belonging to Ray Bennett.
The information was in proper form, as burglary and stealing may be charged in a single count. Section 560.110, RSMo 1969;2 See: State v. Wilson, 544 S.W.2d 859 (Mo.App.1976); State v. McLallen, 522 S.W.2d 1 (Mo.App.1975). With regard to the motor vehicle, the facts of the guilty plea firmly establish that the tampering occurred at the time of the burglary and stealing and that the Jeep was used in movant’s flight and asportation of the stolen goods. Thus, the tampering was a part of a common plan and properly joined as a separate count in the information under Rule 24.04. State v. Johnson, 505 S.W.2d 11 (Mo.App.1974).
Judgment affirmed.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
587 S.W.2d 638, 1979 Mo. App. LEXIS 3232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/britt-v-state-moctapp-1979.