Swan v. State
Swan v. State
Opinion of the Court
Movant, Charles E. Swan, appeals from the denial of his Rule 27.26
On May 11, 1981, movant pled guilty, in cause number CR581-38FX, to stealing, in violation of RSMo § 570.030 (1986), to second degree burglary, in violation of RSMo § 569.170 (1986), and to attempt to commit second degree burglary, in violation of RSMo § 564.011 (1986). He was sentenced to ten months imprisonment on count I, stealing; five years probation with a suspended imposition of sentence of three years imprisonment on count II, second degree burglary; and five years probation with a suspended imposition of sentence of three years imprisonment on count III, attempted second degree burglary. On September 23, 1981, the trial court determined movant had completed the ten month sentence imposed in count I and ordered that movant be released.
On July 19, 1982, movant in an unrelated case, cause number CR582-318FX pled guilty to a three count information. He was sentenced to six years imprisonment on count I, five years imprisonment on count II, and six years imprisonment on count III, such sentences to be served concurrently.
On September 7, 1982, movant’s probation on counts II and III, in cause number CR581-38FX, was revoked as a result of the convictions in CR582-318FX. The trial court then sentenced movant to two concurrent three year terms of imprisonment in counts II and III of cause number CR581-38FX, this sentence to be served consecutively to the terms imposed in CR582-318FX.
In his Rule 27.26 motion, movant alleges he was entitled to credit for the ten months he served in count I of cause number CR581-38FX towards the sentences imposed in counts II and III of cause number CR581-38FX. He maintains that the trial court’s sentence of ten months imprisonment is contrary to the finding in counts II
This court has recently held in two decisions that Rule 27.26 is not the proper remedy where the issue is whether or not the Department of Corrections is imposing the sentence which was ordered by the trial court. See Smith v. State, 741 S.W.2d 727 (Mo.App., E.D. 1988) and Stout v. State, 745 S.W.2d 237 (Mo.App., E.D. 1988). Thus, movant’s claim is not cognizable in a Rule 27.26 motion.
Judgment affirmed.
. Rule 27.26 was repealed effective January 1, 1988. However, under Rules 24.035(1) and 29.-15(m), if sentence was pronounced prior to January 1, 1988, and a motion under Rule 27.26 was pending, Rule 27.26 governs. Movant’s motion was filed before January 1, 1988.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.