State v. Wilbur

Missouri Court of Appeals

State v. Wilbur

976 S.W.2d 15, 1998 WL 390630

CourtMissouri Court of Appeals

DecidedJuly 10, 1998

Docket21769

StatusPublished

Cited by3 cases

This text of 976 S.W.2d 15 (State v. Wilbur) 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.

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State v. Wilbur, 976 S.W.2d 15, 1998 WL 390630 (Mo. Ct. App. 1998).

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Opinion

PREWITT, Presiding Judge.

Following non-jury trial, Defendant was convicted of passing bad cheeks, in violation of Section 570.120, RSMo 1994. He was sentenced to one year in the county jail with all but thirty days to be suspended. On appeal, he contends that the trial court erred in allowing trial to proceed without him having counsel, as he had not knowingly and intelligently waived the right to be represented by an attorney.

This point has merit. The record shows that on the day of trial Defendant appeared without an attorney and, after the case was called, executed the waiver of counsel form provided by Section 600.051, RSMo 1994. Neither then nor previously does the record reflect any warning or advice regarding the perils of a person representing himself. In State v. Wilkerson, 948 S.W.2d 440, 445 (Mo.App.1997), the Court stated:

In determining whether the waiver of counsel is knowing and intelligent, the trial court is not only required to resolve the application of § 600.051, it must also determine whether the defendant was advised of the perils of self-representation. [Citations omitted.]

This advice must be given on the record before the trial date, to allow defendant time to choose whether to waive the right to an attorney. State v. West, 949 S.W.2d 914, 915 (Mo.App.1997). See also State v. Schnelle, 924 S.W.2d 292, 296-300 (Mo.App.1996); State v. Wilson, 816 S.W.2d *16 301, 307 (Mo.App.1991). The right to counsel exists when, the defendant may be incarcerated if found guilty. State v. Kilburn, 941 S.W.2d 737, 739 (Mo.App.1997); State v. Stark, 706 S.W.2d 899, 901 (Mo.App.1986). Whether or not indigent, the defendant must be admonished on the perils of self-representation. Kilb urn, 941 S.W.2d at 739.

In an apparent effort to rectify this discrepancy, the State attempts to present us with a transcript in another criminal charge against Defendant, where on June 3, 1997, sixteen days before the trial here, a different trial judge is purported to have advised Defendant regarding proceeding without counsel. This purported transcript is attached as an “exhibit” to the State’s brief. As this is not part of the record here and in the trial court, it cannot be considered. See Olson v. Christian County, 952 S.W.2d 736, 738 (Mo.App.1997).

The judgment is reversed and the cause remanded for further proceedings.

CROW and PARRISH, JJ., concur.

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PREWITT, Presiding Judge.

Following non-jury trial, Defendant was convicted of passing bad cheeks, in violation of Section 570.120, RSMo 1994. He was sentenced to one year in the county jail with all but thirty days to be suspended. On appeal, he contends that the trial court erred in allowing trial to proceed without him having counsel, as he had not knowingly and intelligently waived the right to be represented by an attorney.

This point has merit. The record shows that on the day of trial Defendant appeared without an attorney and, after the case was called, executed the waiver of counsel form provided by Section 600.051, RSMo 1994. Neither then nor previously does the record reflect any warning or advice regarding the perils of a person representing himself. In State v. Wilkerson, 948 S.W.2d 440, 445 (Mo.App.1997), the Court stated:

In determining whether the waiver of counsel is knowing and intelligent, the trial court is not only required to resolve the application of § 600.051, it must also determine whether the defendant was advised of the perils of self-representation. [Citations omitted.]

This advice must be given on the record before the trial date, to allow defendant time to choose whether to waive the right to an attorney. State v. West, 949 S.W.2d 914, 915 (Mo.App.1997). See also State v. Schnelle, 924 S.W.2d 292, 296-300 (Mo.App.1996); State v. Wilson, 816 S.W.2d *16 301, 307 (Mo.App.1991). The right to counsel exists when, the defendant may be incarcerated if found guilty. State v. Kilburn, 941 S.W.2d 737, 739 (Mo.App.1997); State v. Stark, 706 S.W.2d 899, 901 (Mo.App.1986). Whether or not indigent, the defendant must be admonished on the perils of self-representation. Kilb urn, 941 S.W.2d at 739.

In an apparent effort to rectify this discrepancy, the State attempts to present us with a transcript in another criminal charge against Defendant, where on June 3, 1997, sixteen days before the trial here, a different trial judge is purported to have advised Defendant regarding proceeding without counsel. This purported transcript is attached as an “exhibit” to the State’s brief. As this is not part of the record here and in the trial court, it cannot be considered. See Olson v. Christian County, 952 S.W.2d 736, 738 (Mo.App.1997).

The judgment is reversed and the cause remanded for further proceedings.

CROW and PARRISH, JJ., concur.

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976 S.W.2d 15, 1998 WL 390630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilbur-moctapp-1998.

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