State v. Sullivan

Supreme Court of Missouri

State v. Sullivan

451 S.W.2d 123, 1970 Mo. LEXIS 1053

CourtSupreme Court of Missouri

DecidedMarch 9, 1970

DocketNo. 54763

StatusPublished

Cited by3 cases

This text of 451 S.W.2d 123 (State v. Sullivan) 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

State v. Sullivan, 451 S.W.2d 123, 1970 Mo. LEXIS 1053 (Mo. 1970).

Pincite

Opinions

WELBORN, Commissioner.

Appeal from 10-year sentence, imposed under Second Offender Act, upon jury verdict finding appellant, James Henry Sullivan, guilty of stealing neat cattle. § 560.161, subd. 2(3), RSMo 1959, V.A.M.S.

The issues raised here all relate to the Second Offender Act. We dispose of the appeal, under the plain error rule, Supreme Court Rule 27.20(c), V.A.M.R., on a ground not raised by appellant.

The amended information, in invoking the Second Offender Act, alleged:

“That defendant, James Henry Sullivan was, in the District Court of Ottawa County, Oklahoma, upon the 21st day of July, 1967, convicted of the offense of Burglary, Second Degree, an offense punishable by imprisonment in the penitentiary in both the States of Oklahoma and Missouri, and upon said conviction was sentenced to a term of three years in the Oklahoma penitentiary and subsequent thereto said defendant appealed said conviction and sentence to the Court of Criminal Appeals for the State of Oklahoma, and thereafter and upon the 27th day of November, 1968, said conviction and sentence was affirmed by said Criminal Court of Appeals.”

' There is no allegation that appellant was, subsequent to the Oklahoma sentence, placed on probation, paroled, fined or imprisoned therefor, as required by § 556.280 RSMo 1959, V.A.M.S. Although under § 556.280(3), the affirmance of the Oklahoma conviction would permit its being used as a basis for application of the Second Offender Act in this case, the conviction must, nevertheless, have been followed by either imprisonment, probation, parole or fine. State v. Garrett, Mo.Sup., 416 S.W.2d 116, 120 [7-9]. That no evidence was offered in this respect is one of the allegations of error advanced by appellant. We find no such evidence, and the trial court’s finding is in the terms of the information, quoted above. The fundamental deficiency in the information is plain error, requiring reversal of the judgment of conviction and remand for a new trial. State v. Miller, Mo.Sup., 427 S.W.2d 506; [124]*124State v. Wiley, Mo.Sup., 412 S.W.2d 485, 487 [1-3].

Reversed and remanded.

HOUSER, HIGGINS, CC., concur.

PER CURIAM.

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

SEILER, P. J., concurs. HOLMAN, J., concurs in result in separate concurring opinion filed. HENLEY, Alt. J., concurs in result and concurs in separate concurring opinion of HOLMAN, J. STORCKMAN, J., not sitting.

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

WELBORN, Commissioner.

Appeal from 10-year sentence, imposed under Second Offender Act, upon jury verdict finding appellant, James Henry Sullivan, guilty of stealing neat cattle. § 560.161, subd. 2(3), RSMo 1959, V.A.M.S.

The issues raised here all relate to the Second Offender Act. We dispose of the appeal, under the plain error rule, Supreme Court Rule 27.20(c), V.A.M.R., on a ground not raised by appellant.

The amended information, in invoking the Second Offender Act, alleged:

“That defendant, James Henry Sullivan was, in the District Court of Ottawa County, Oklahoma, upon the 21st day of July, 1967, convicted of the offense of Burglary, Second Degree, an offense punishable by imprisonment in the penitentiary in both the States of Oklahoma and Missouri, and upon said conviction was sentenced to a term of three years in the Oklahoma penitentiary and subsequent thereto said defendant appealed said conviction and sentence to the Court of Criminal Appeals for the State of Oklahoma, and thereafter and upon the 27th day of November, 1968, said conviction and sentence was affirmed by said Criminal Court of Appeals.”

' There is no allegation that appellant was, subsequent to the Oklahoma sentence, placed on probation, paroled, fined or imprisoned therefor, as required by § 556.280 RSMo 1959, V.A.M.S. Although under § 556.280(3), the affirmance of the Oklahoma conviction would permit its being used as a basis for application of the Second Offender Act in this case, the conviction must, nevertheless, have been followed by either imprisonment, probation, parole or fine. State v. Garrett, Mo.Sup., 416 S.W.2d 116, 120 [7-9]. That no evidence was offered in this respect is one of the allegations of error advanced by appellant. We find no such evidence, and the trial court’s finding is in the terms of the information, quoted above. The fundamental deficiency in the information is plain error, requiring reversal of the judgment of conviction and remand for a new trial. State v. Miller, Mo.Sup., 427 S.W.2d 506; [124]*124State v. Wiley, Mo.Sup., 412 S.W.2d 485, 487 [1-3].

Reversed and remanded.

HOUSER, HIGGINS, CC., concur.

PER CURIAM.

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

SEILER, P. J., concurs. HOLMAN, J., concurs in result in separate concurring opinion filed. HENLEY, Alt. J., concurs in result and concurs in separate concurring opinion of HOLMAN, J. STORCKMAN, J., not sitting.

Cite This Page — Counsel Stack

Bluebook (online)

451 S.W.2d 123, 1970 Mo. LEXIS 1053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sullivan-mo-1970.

Opinions

Related

Cite This Page — Counsel Stack