State Ex Rel. LaChance v. Bowersox

119 S.W.3d 95 (2003)

STATE ex rel. Rocky LaCHANCE, Petitioner, v. Michael BOWERSOX, Superintendent, and Jeremiah Nixon, Attorney General, Respondents.

No. SC 85091.

Supreme Court of Missouri, En Banc.

September 30, 2003.

Rehearing Denied November 25, 2003.

Fernando Bermudez, St. Louis, for Petitioner.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stephen D. Hawke, Asst. Atty. Gen, Jefferson City, for Respondents.

PER CURIAM.

Michael Bowersox is directed to correct the records of the department of corrections to reflect that the sentence imposed by the Circuit Court of St. Louis County in case no. 96CR-001022(1) is to be served concurrently, rather than consecutively, with the seven-year sentences imposed by the Circuit Court of St. Louis City in case no. 951-2736. A permanent writ of mandamus shall issue accordingly.

When pronouncing sentence in case no. 96CR001022(1), the court failed to state whether the sentences as to those offenses shall run consecutively to or concurrently with sentences imposed in case no. 951-2736, offenses for which LaChance had been previously sentenced. As the court failed to do so at the time of pronouncing the sentences, the respective sentences shall run concurrently. Rule 29.09.

To the extent the written judgment imposed the sentences consecutively, it was a material difference from the sentence orally pronounced. If a material difference exists, the oral pronouncement controls. State v. Franklin, 975 S.W.2d 493 (Mo.App.1998). The oral pronouncement of the circuit court of St. Louis County was of a maximum sentence of 13 years.

All concur.

The Court expresses its appreciation to Attorney Fernando Bermudez, who represented petitioner pro bono by appointment of the Court.