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09/21/93 STATE MISSOURI v. BARRY JOHNSON

September 21, 1993

STATE OF MISSOURI, PLAINTIFF/RESPONDENT,
v.
BARRY JOHNSON, DEFENDANT/APPELLANT. BARRY JOHNSON, MOVANT/APPELLANT, V. STATE OF MISSOURI, RESPONDENT.



Appeal from the Circuit Court of the City of St. Louis. Honorable Daniel T. Tillman.

Stanley A. Grimm, Presiding Judge, Carl R. Gaertner, Judge, concurs. Clifford H. Ahrens, Judge, concurs.

The opinion of the court was delivered by: Grimm

A jury convicted defendant of selling a controlled substance in violation of § 195.214, RSMo Cum Supp. 1992. On appeal, he raises six points of error. We clarify the sentence imposed and affirm.

I. Sentencing

Defendant contends that the trial court plainly erred "by entering in its written sentence and judgment that was sentenced to a term of imprisonment of fifteen years without probation and parole when the oral pronouncement of the court was that was sentenced to a term of imprisonment of fifteen years with no qualification as to status as a repeat offender and no qualification that the sentence was to be served without probation or parole." He argues this resulted in manifest inJustice and violated his constitutional rights. Further, he argues the trial court was without jurisdiction "to adopt an amended sentence and judgment through a nunc pro tunc order."

On June 12, 1990, the State filed a second substitute information in lieu of indictment. It charged defendant "committed the class A felony without probation and parole of sale of a controlled substance, punishable as a persistent drug offender upon conviction under Sections 195.291 and 558.011.1(1), RSMo." Also, it alleged he committed this offense on October 23, 1989, by selling cocaine to an undercover officer. In addition, it alleged that on September 23, 1986, defendant pled guilty to both sale and possession of heroin, each a felony relating to controlled substances.

Trial of defendant's case also began on June 12. The trial court, Judge Perry Rhew presiding, heard evidence concerning the prior drug related convictions. The trial Judge found that defendant "is a prior and persistent offender beyond a reasonable doubt." The jury was unable to reach a verdict and the trial court declared a mistrial.

Defendant was retried in February, 1991, with Judge Daniel T. Tillman presiding. At the close of the evidence, the prosecutor asked the trial court to "adopt the findings of the Judge of the previous hearing with regard to . . . defendant, . . . as a prior and persistent." The court took judicial notice and adopted "Judge Rhew's findings in regard to defendant's prior convictions."

On April 26, the trial court sentenced defendant. The trial court said: "It is herein the sentence and judgment of the Court defendant to be sentenced to 15 years within the Department of Corrections." No mention was made that defendant was being sentenced as a prior and persistent drug offender.

The written sentence and judgment dated April 26 reflects defendant was sentenced to 15 years "without probation or parole under 558.011.1." However, § 558.011.1 does not contain any reference to punishment "without probation or parole." Rather, that section is the general section pertaining to authorized terms of imprisonment for class A felonies.

On May 3, defendant filed his notice of appeal. Thereafter, on May 13, the trial court entered the following order:

Nunc Pro Tunc

Comes now the Court with the approval of both parties, and hereby adopts the Amended Sentence and Judgment attached and dated May 13, 1991 as the sentence and judgment order in the above referenced cause, effective immediately.

The written amended sentence and judgment dated May 13 reflects defendant was sentenced to 15 years "without probation or ...


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