Collett v. State

Missouri Court of Appeals

Collett v. State

572 S.W.2d 867, 1978 Mo. App. LEXIS 2861

CourtMissouri Court of Appeals

DecidedSeptember 19, 1978

DocketNo. 39484

StatusPublished

This text of 572 S.W.2d 867 (Collett 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.

Bluebook

Collett v. State, 572 S.W.2d 867, 1978 Mo. App. LEXIS 2861 (Mo. Ct. App. 1978).

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Opinion

SMITH, Judge.

Movant appeals from the order of the trial court dismissing without evidentiary hearing a motion to set aside sentence. Movant was convicted by a jury of two counts of armed robbery. The trial court sentenced movant to twenty-seven years on each count and specified that the sentences were to run consecutively. Movant was sentenced under the Second Offender Act. Movant bases his 27.26 motion upon the contention that the consecutive sentences were imposed pursuant to Sec. 546.480 RSMo 1969, declared unconstitutional by the Supreme Court in State v. Baker, 524 S.W.2d 122 (Mo. banc 1975).

Here the record does not indicate that the trial court relied upon Sec. 546.480 in imposing sentence. The record also does not clearly indicate that the court based its determination that the sentences should run consecutively upon discretionary grounds. During sentencing when the matter was called to the court’s attention, it did indicate that it was taking into account the “circumstances surrounding the facts in the case.” Whether this statement was directed specifically to the length of sentence or the consecutive nature of the sentence is not free from doubt although it appears to be directed to both. There is an additional feature to this case. The sentencing judge and the judge who passed on the 27.26 motion were the same person. In that posture we must presume that the trial court, freed of the constraints of the statute, reviewed the 27.26 motion within the proper constitutional framework and in such a situation remand for resentencing is not constitutionally required. See Lawson v. State, 542 S.W.2d 796 (Mo.App.1976); Hudson v. State, 552 S.W.2d 244 (Mo.App.1977). The record before us on both the original trial and the 27.26 motion supports the trial court’s finding that discretion was exercised at the time of sentencing.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.

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SMITH, Judge.

Movant appeals from the order of the trial court dismissing without evidentiary hearing a motion to set aside sentence. Movant was convicted by a jury of two counts of armed robbery. The trial court sentenced movant to twenty-seven years on each count and specified that the sentences were to run consecutively. Movant was sentenced under the Second Offender Act. Movant bases his 27.26 motion upon the contention that the consecutive sentences were imposed pursuant to Sec. 546.480 RSMo 1969, declared unconstitutional by the Supreme Court in State v. Baker, 524 S.W.2d 122 (Mo. banc 1975).

Here the record does not indicate that the trial court relied upon Sec. 546.480 in imposing sentence. The record also does not clearly indicate that the court based its determination that the sentences should run consecutively upon discretionary grounds. During sentencing when the matter was called to the court’s attention, it did indicate that it was taking into account the “circumstances surrounding the facts in the case.” Whether this statement was directed specifically to the length of sentence or the consecutive nature of the sentence is not free from doubt although it appears to be directed to both. There is an additional feature to this case. The sentencing judge and the judge who passed on the 27.26 motion were the same person. In that posture we must presume that the trial court, freed of the constraints of the statute, reviewed the 27.26 motion within the proper constitutional framework and in such a situation remand for resentencing is not constitutionally required. See Lawson v. State, 542 S.W.2d 796 (Mo.App.1976); Hudson v. State, 552 S.W.2d 244 (Mo.App.1977). The record before us on both the original trial and the 27.26 motion supports the trial court’s finding that discretion was exercised at the time of sentencing.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.

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Bluebook (online)

572 S.W.2d 867, 1978 Mo. App. LEXIS 2861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collett-v-state-moctapp-1978.

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