Parks v. State

492 S.W.2d 746, 1973 Mo. LEXIS 1026

• Court: Supreme Court of Missouri
• Decided: April 9, 1973
• Docket: 57607
• Status: Published

Opinions

DONNELLY, Judge.

Appellant, John Henry Parks, on October 15, 1963, entered a plea of guilty in Jackson County, Missouri, to a charge of murder in the first degree, and was sentenced to life imprisonment.

On November 24, 1970, appellant filed a motion to withdraw guilty plea and to vacate judgment and sentence under Rules 27.25 and 27.26, V.A.M.R. An evidentiary hearing was held on February 26, 1971, and, on September 20, 1971, the trial court denied relief.

On January 10, 1972, appellant was given leave to file notice of appeal out of time, and he filed his notice of appeal in the Circuit Court of Jackson County on January 11, 1972. The case was argued in Division Two of this Court on January 10, 1973. On January 11, 1973, it was transferred to the Court En Banc. It was rebriefed and reargued on March 7, 1973.

The question is whether jurisdiction is in this Court or in the Missouri Court of Appeals, Kansas City District.

Mo.Const. Art. V, § 3 (as amended at special election August 4, 1970, effective date January 1, 1972), provides, in part, that the Supreme Court shall have exclusive appellate jurisdiction “ * * * in all appeals involving offenses punishable by a sentence of death or life imprisonment * * On June 14, 1972, in Garrett v. State, 481 S.W.2d 225, 227, this Court held that such phrase “embraces ‘only those offenses having as alternative punishments life imprisonment or death,’ ” and noted that, on June 14, 1972, the only offense having alternative punishments of death or life imprisonment was murder in the first degree.

On June 29, 1972, the Supreme Court of the United States, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, “ruled that the death penalty under statutes such as we have in Missouri * * * may may not now be imposed * * * [and that the] sole and only punishment for first degree murder in this state is now life imprisonment.” State v. Cuckovich, 485 S.W. 2d 16, 28 (Mo. banc, Sept. 11, 1972).

We must conclude that murder in the first degree is not now an offense having alternative punishments of death or life imprisonment. This Court does not have jurisdiction of this appeal.

The cause is ordered transferred to the Kansas City District of the Missouri Court of Appeals.

HENLEY, J., concurs in separate concurring opinion filed. SEILER and MORGAN, JJ., concur and concur in separate concurring opinion of HENLEY, J. DONNELLY, J., concurs in separate concurring opinion of HENLEY, J. FINCH, C. J., dissents in separate dissenting opinion filed. HOLMAN and BARDGETT, JJ., dissent and concur in separate dissenting opinion of FINCH, C. J.