author: RENDLEN, Judge. BARDGETT, Judge,

text:
    STATE of Missouri ex rel. J. D. S., a minor child by his guardian ad litem, and J. D. M., Relators, v. The Honorable Ninian M. EDWARDS, Judge of the Juvenile Court of St. Louis County, Missouri, Respondent.
    No. 60634.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.

      Robert C. Dodson, Festus, for relator (Father).
    Elizabeth R. Levine, Clayton, Michael Bas-tían, St. Louis (of counsel), for relator (Atty. and Guardian).
    Martin Schiff, Jr., Clayton, for respondent.
   RENDLEN, Judge.

Relators J.D.M., the putative father and J.D.S., his illegitimate son, sought prohibition in the Court of Appeals, St. Louis District, to prevent the Judge of the Juvenile Court of St. Louis County from transferring the guardianship and custody of the child to the State Division of Family Services after terminating the parental rights of only the child’s unwed mother. The Court of Appeals issued its writ prohibiting respondent from making such custodial change. The cause was transferred here and though such transfer was ordered following opinion in the Court of Appeals, “we consider the case the same as one that had been commenced as an original proceeding in this court.” State ex rel. Adrian Bank v. Luten, 488 S.W.2d 636, 637 (Mo. banc 1973).

The principal questions presented are (1) may the State constitutionally terminate parental rights without providing the putative father an opportunity to protect his status as a parent, and (2) if he is entitled to such opportunity, against what standard shall his substantive rights be measured in parental termination proceedings?

The relator-child was born out of wedlock on May 19, 1976, and almost immediately the mother K.L.S., then a minor, executed her consent to the termination of parental rights and a waiver of the necessity of consent to her son’s future adoption. The Division of Family Services placed the child in a foster home about May 24,1976, where he has remained under order of respondent throughout these proceedings.

The father states that since the birth of the child, he has repeatedly demanded custody and that “visits between the father and child have continuously been arranged through the Agency since the child’s birth.” Respondent in his brief concedes the correctness of these statements.

On March 22,1977, the juvenile officer of St. Louis County, Missouri, petitioned the Juvenile Division of the Circuit Court of St. Louis County, naming K.L.S. as the mother and J.D.M. as the father, praying that the court terminate all parental rights of the mother and transfer legal custody of the child to the Division of Family Services. Notified of the proceedings, the father filed a request for an admission that he was the natural father of the child, and the mother and juvenile officer admitted the relationship.

On April 6 a hearing was conducted, but before testimony was taken the father moved (1) to intervene under Rule 52.12(a) and (2) to dismiss for failure to state a cause of action, contending that termination of his parental rights without his consent constituted a denial of due process and equal protection in violation of the fifth and fourteenth amendments to the United States Constitution and art. I, §§ 2 and 10 of the Missouri Constitution. Respondent overruled both motions whereupon evidence was taken and at the close of the hearing, the father moved for a judgment against the juvenile officer for the same reasons he had previously advanced. Respondent also overruled this motion, stating that under §§ 211.441-.511, and particularly § 211.501, RSMo 1969, only the mother of an illegitimate child has parental rights and unless prohibited by a court of competent jurisdiction, he would on June 1, 1977, enter a judgment terminating the parental rights of the mother, declaring as a matter of law that the natural father “does not have any parental rights in the child,” and transferring custody of the child to the Division of Family Services, all pursuant to §§ 211.-441-.511, RSMo 1969, and ch. 453, RSMo 1969 and Supp.1975.

The Court of Appeals, in the subsequent prohibition action, ruled that the termination of parental rights statute, §§ 211.-441-.511, RSMo 1969, and the adoption code, ch. 453, RSMo 1969 and Supp.1975, are unconstitutional “insofar as they deny putative fathers parental rights” and accordingly prohibited respondent from entering the order placing the child with the Division of Family Services.

The then controlling statute on termination of parental rights established the following procedures: A petition for termination may be filed “as provided in other cases of children coming under the jurisdietion of the court, . . . ” § 211.441. It shall include the reasons for seeking termination and, in the case of an illegitimate child, the name and address of the mother and of the father if he has been adjudged the father or has acknowledged his paternity in writing. § 211.451(3) and (5). A hearing by the juvenile court is required. § 211.461.1. Among the persons to be summoned and to receive a copy of the petition are the parents of the child; also, summons shall issue to any persons whose presence the court deems necessary or whose presence is requested by the parent, guardian or petitioner. Id. In order to terminate parental rights, the court under § 211.501.1 must find that such termination is in the best interest of the child and that any one of several conditions prescribed in § 211.-441 must exist.

The key statutory section here at issue is § 211.50R2, which provides:

If the court terminate[s] the parental rights of both parents, [or] of the mother if the child is illegitimate, ... it may transfer the guardianship and legal custody of the child to a suitable person, or the state division of welfare [now the Division of Family Services], or a licensed child welfare agency. (Emphasis added.)

Respondent construed this section as precluding the putative father from asserting any rights to his minor child in such proceedings. As noted above, § 211.451(3) requires that a petition for termination of parental rights shall name “the father of a child born out of wedlock who has acknowledged paternity in writing or has been adjudged the father . . . .” From this it could be argued that the father of an illegitimate child must be given notice and allowed to participate in any termination proceeding. Notwithstanding this seemingly inconsistent provision of the statute, we believe that respondent correctly construed the crucial statutory section, 211.501.2, as permitting severance of all parental rights in the case of an illegitimate child though rights of only the mother had been terminated. For the reasons hereinafter discussed we hold that to the extent sections 211.441 to 211.511 so permit, they are unconstitutional.

In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the U.S. Supreme Court addressed the constitutionality of an Illinois statute automatically rendering minor illegitimate children wards of the State upon the death of their mother. The unmarried father in Stanley had lived with the mother intermittently for eighteen years and three children had been born to them. The Court determined that under the due process clause of the fourteenth amendment the father, having manifested a strong interest in the control and custody of his children, was entitled to a hearing on the issue of his fitness as a parent before the children could be taken from him. The Court pointed out that under the Illinois law,

the State, on showing that the father was not married to the mother, need not prove unfitness in fact, because it is presumed at law. Thus the unwed father’s claim of parental qualification is avoided as ‘irrelevant.’

405 U.S. at 650, 92 S.Ct. at 1212. The Court concluded, id. at 657, 92 S.Ct. at 1215.

[W]hen, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand,

and declared the Illinois procedure a constitutionally impermissible denial of process due the putative father. It also ruled, because other Illinois parents were entitled to a hearing on their fitness before their children are removed from their custody, that “denying such a hearing to Stanley and those like him while granting it to other Illinois parents is inescapably contrary to the Equal Protection Clause.” Id. at 658, 92 S.Ct. at 1216.

It is clear that §§ 211.441-.511, particularly § 211.501, to the extent they deny putative fathers any opportunity for a hearing on their rights in parental termination proceedings, are violative of the due process and equal protection guaranteed by the fourteenth amendment to the United States Constitution and thus void.

We now determine the proper standard for application in proceedings convened to determine the substantive rights of putative fathers relative to their children. Section 221.441 provides that married fathers’ parental rights may be terminated only (1) on a showing by “clear, cogent and convincing evidence” that one of the prescribed statutory conditions (e. g., abandonment or neglect) exists and (2) that termination “is in the best interest of the child.” See also § 211.501. A legislative recognition of married fathers’ presumption of fitness is manifest in the high level of proof required by the statute to support a finding of unfitness as to them. However, we believe that an unwed father initially has no such strong presumption of parental fitness. The State is not constitutionally required to accord such presumption. Instead the State is free to require an unwed father first to prove that he has seasonably demonstrated a meaningful intent and a continuing capacity to assume responsibility with respect to the supervision, protection and care of the child, and the trial court in these proceedings should at the outset examine the extent of such parental concern and capacity as may have been demonstrated by the putative father. On a finding of such concern and capacity, the father is then cloaked with the benefit of the presumption of fitness essentially the same as that enjoyed by other parents and the burden becomes the petitioner’s to show by “clear, cogent and convincing evidence,” unfitness, waiver or other disqualification of the sort described in § 211.441, RSMo 1969.

Following its decision in Stanley, supra, the Supreme Court in Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), found that a Georgia adoption law that had been applied to deny an unwed father authority to veto adoption of his illegitimate child constituted no impermissible deprivation of the parental rights under the due process or equal protection clauses. The Court stated that Stanley had recognized the father’s interests as substantial and the State’s as minimal in the situation then presented. But when an illegitimate child has lived for seven years with the mother and stepfather, apart from the natural father, “Stanley left unresolved the degree of protection a State must afford to the rights of an unwed father in a situation, such as that presented here, in which the countervailing interests are more substantial.” 434 U.S. at 248, 98 S.Ct. at 551. In regard to the equal protection argument, the Quilloin court concluded that the putative father’s interests were distinguishable from those of a separated or divorced father. Quilloin therefore provides authority for distinguishing under the federal constitution between married and unmarried fathers regarding when and to what extent the presumption of fitness attaches.

However, the Court in Quilloin approved application of the “best interests of the child” standard for determining the father’s rights, apparently without regard to a presumption of fatherly fitness. This standard presents the difficulty that an unwed father, though he may have shown great parental concern, must compete with adoptive parents to establish not only that he is a suitable parent (/. e., meeting a charge of unfitness), but also that he is the most suitable of those seeking custody of the children. For those unwed fathers who are fit, and who have demonstrated such parental concern, the standard approved by the U.S. Supreme Court in Quilloin seems to represent a diminution of the protection afforded by the due process and equal protection clauses of the United States Constitution set forth in Stanley. We are disinclined to so dilute these important rights. We hold that the Missouri Constitution, art. I, §§ 2 and 10, requires as the appropriate minimum standard that the same presumption of fitness afforded married fathers in parental termination proceedings be afforded to natural fathers after a reasonable showing of fatherly concern in such cases. The legislature appears to have met and exceeded that minimum standard by the newly enacted parental termination statute.

Finally, we consider the intended adoption action for which this termination proceeding is a prelude. Respondent, as a part of his proposed judgment, made the following finding of fact,

The agency represented to the Court that the said child is suitable for adoption and that the agency has a suitable home available in which it intends to place said child for adoption;

and thereupon ordered,

Custody of the child is transferred to the Division of Family Services, St. Louis County Office for the foster care, and, further, under the provisions of Sections 453.040 and 453.110, R.S.Mo., 1969, for placement of the child in the best available adoptive home.

Though respondent anticipated the eventual adoption of the child at such time as the requirements of ch. 453 were satisfied, it is apparent that sections 453.030 and 453.040 contain provisions relative to the required consent of the parents which suffer the same constitutional infirmities found in § 211.501.2 above. Section 453.030.3 states that the written consent of the parents of the child shall be required for adoption, except in the circumstances enumerated in § 453.040; however, in the case of an illegitimate child, the consent “of the mother alone” suffices. Section 453.040 eliminates the necessity for that written consent when (1) “a parent” has been adjudged to be incompetent; (2) the rights of “a parent” have been terminated, as in proceedings under ch. 211; (3) “a parent” or “the mother of a child born out of wedlock” has previously waived the necessity to consent; and (4) “a parent” has abandoned or neglected the child for at least one year. Insofar as these sections deny an unwed father parental rights, they are invalid for the same reasons discussed in relation to proceedings under §§ 211.441-.511. Though our declarations regarding the partial invalidity of these sections of ch. 453 are unnecessary for disposition of the principal issues before us, we believe it important to have spoken to the problem presented by the adoption statute to dispel any inference of statutory validity of these sections that might be drawn from a failure to comment as we have done.

The proposed action of the trial court taken in reliance on the constitutionally-infirm provisions of §§ 211.441-.511, RSMo 1969, is in excess of its jurisdiction. Therefore, the preliminary writ of prohibition is made absolute.

MORGAN, C. J., FINCH, DONNELLY and SEILER, JJ., and SOMERVILLE, Special Judge, concur.

BARDGETT, J., concurs in part and dissents in part in separate opinion filed.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

BARDGETT, Judge,

concurring in part and dissenting in part.

I concur in the holding of the principal opinion that section 211.501.2 is unconstitutional under Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), because the effect of that section is to statutorily bar the putative father from even seeking the adoption of his illegitimate child. In Stanley the statute declared unconstitutional barred a putative father from adopting his illegitimate children because the statute declared him unfit as a matter of law. The effect of both the Missouri and Illinois statutes is the same.

However, I dissent from that portion of the opinion that undertakes to set standards for the determination of the rights of putative fathers. The general assembly has covered that subject in H.B. 972 referred to in footnote one of the principal opinion and that law is now in effect. Having declared section 211.501.2 unconstitutional, I would remand the matter to the juvenile court for proceedings in accordance with H.B. 972 (sections 211.242-211.492, RSMo) instead of judicially adopting any other procedures at this time because it is not necessary to do so.

      . The General Assembly has enacted a new termination of parental rights statute effective in September, 1978. H.B. 972, 1978 Mo.Legis. Serv. 270 (Vernon) (codified as §§ 211.-442- 492, RSMo). § 211.442 of the new statute addresses the rights of the putative father as follows:
      As used in this act ‘parent’ means a biological parent or parents of a child, as well as the husband of a natural mother at the time the child was conceived, or a parent or parents of child by adoption, and includes both the mother and putative father of an illegitimate child. The father of an illegitimate child shall have no legal relationship unless he, prior to the entry of a decree under this act has acknowledged the child as his own by affirmatively asserting his paternity; provided, however, that a parent whose identity is known and who can be personally served, shall be served by process as provided in Chapter 506 of the Revised Statutes of this state and made a party to any action under this act.
      § 211.487.2 provides, “In any action for termination of parental rights pending prior to the effective date of this act, the law in effect at the time of the filing of the petition for termination of parental rights shall govern the hearing on such petition and any appeal therefrom.” Accordingly, our decision here and subsequent proceedings in this case concern the prior law and its application.

      . The conditions listed in § 211.441 are:
      (1) When the parents have consented in writing to the termination of their parental rights.
      (2) When it appears by clear, cogent and convincing evidence that for one year or more immediately prior to the filing of the petition
      (a) The parents have abandoned the child;
      (b) The parents have willfully, substantially and continuously or repeatedly neglected the child and refused to give the child necessary care and protection;
      (c) The parents, being financially able, have willfully neglected to provide the child with the necessary subsistence, education or other care necessary for his health, morals or welfare or have neglected to pay for such subsistence, education or other care when legal custody of the child is lodged with others;
      (d) The parents are unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs or repeated lewd and lascivious behavior, which conduct is found by the court to be seriously detrimental to the health, morals, or well-being of the child;
      (e) The parents have been found incompetent under chapter 475, RSMo, and are incapable, and there are reasonable grounds to believe that they will continue to be incapable of giving the child necessary care and protection.

      . See n. 1 above.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri ex rel., G. B. R., Relator, v. The Honorable Ninian M. EDWARDS, Judge of the Juvenile Court of St. Louis County, Missouri, Respondent.
    No. 60633.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.
    Harold G. Johnson, St. Ann, for relator.
    Martin Schiff, Jr., Clayton, for respondent.
   RENDLEN, Judge.

The operative facts in this prohibition case are substantially the same as those in State ex rel. J. D. S. v. Edwards, No. 60634, 574 S.W.2d 405 (Mo. banc 1978), which we have decided this day. Baby Girl H. (hereafter, child) was born out of wedlock in November, 1976, to a minor E. H. (hereinafter, mother), and G. B. R., relator here, who it is admitted was the child’s father. Following the birth, the mother executed a consent to the termination of her parental rights and a waiver of the necessity to consent to adoption. Respondent ordered the child placed in a foster home in early December, 1976, and the juvenile officer of St. Louis County petitioned for termination of parental rights.

The father states that since its birth he has continually demanded the custody of the child, a fact admitted by respondent. On December 15,1976, the father petitioned the court for a declaration of his parentage and for custody of his child and that action was consolidated with the juvenile officer’s proceeding for termination. In January, 1977, the father moved (1) for a home study of the residence of his parents and himself, (2) for a hearing date on his petition for custody, and (3) to intervene in the termination proceeding.

In the hearing conducted April 6, 1977, respondent orally advised the parties of his intention to enter an order May 2, 1977 (later extended to June 1, 1977) to terminate the mother’s parental rights, dismiss the father’s petition for custody, and to transfer custody of the child to the Division of Family Services for purposes of adoption. The statutory authority for the proposed order apparently was the same as that considered in State ex rel. J. D. S. v. Edwards, No. 60634, 574 S.W.2d 405 (Mo. banc 1978).

The father promptly petitioned for and obtained a writ of prohibition in the Court of Appeals, St. Louis District, which issued shortly after the writ in J. D. S. Both cases were transferred after opinion in the Court of Appeals and presented concurrently for determination here.

Our decision today in J. D. S. controls the case at bar. The guarantees of due process and equal protection mandate that the father receive the same protection in any further proceedings, as that afforded relator in J. D. S. The writ is made absolute.

MORGAN, C. J., FINCH, DONNELLY and SEILER, JJ., and SOMERVILLE, Special Judge, concur.

BARDGETT, J., concurs in part and dissents in part in separate opinion filed.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.

BARDGETT, Judge,

concurring in part and dissenting in part.

I concur in part and dissent in part as per my separate opinion concurring in part and dissenting in part filed in State ex rel. J. D. S. v. Edwards, 574 S.W.2d 405 (Mo. banc 1978) [No. 60634] decided concurrently herewith.

      . This record does not contain respondent’s proposed order in written form. We are told in relator’s brief that the proposed order would be the same as that for J. D. S.; respondent acquiesces in his brief to that statement.


author: SEILER, Judge.

text:
    Keith ABEL, Petitioner, v. Donald W. WYRICK, Respondent.
    No. 60227.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.

      C. Christy Barton, Jefferson City, for petitioner.
    John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.
   SEILER, Judge.

This is a habeas corpus proceeding in which petitioner claims that he is being illegally confined because of failure to afford him his due process rights at his probation revocation hearing. This court has jurisdiction and venue, as will be gone into below. The major issues for our consideration on the merits are whether (1) failure to notify petitioner of the violations to be charged against him prior to hearing violated his due process rights, in light of his admission that he committed the violations; (2) whether the trial judge considered, and if not, should have considered, alternatives to incarceration once petitioner admitted the violation of conditions of his probation, including the question whether petitioner was afforded an opportunity to present evidence on this issue; (3) whether the petitioner should have been informed of his right to request an attorney to represent him at the hearing; and (4) whether the hearing judge was required to indicate his reasons for revocation in the formal revocation order itself.

The facts are fairly straightforward. On May 5, 1975, petitioner was convicted of second degree burglary and stealing, for which he was sentenced to consecutive terms of three years and two years, respectively. Execution of both sentences was suspended and petitioner was placed on five years probation under the supervision of the State Board of Probation and Parole. The conditions of probation imposed included the following:

“(1) I shall obey all laws and ordinances of the United States, State, County or municipality. All arrests for any reason must be reported without delay to my probation and parole officer.
(2) I shall obtain advance permission from my probation and parole officer before leaving the state or the area in which I am living. The probation and parole officer is authorized to determine this area.
(9) Special conditions . . . Abstain completely from use of all alcohol and do not frequent any establishment where alcohol is offered for sale.”

Abel was arrested for driving while intoxicated sometime prior to October 7,1976, as a consequence of which he was convicted of public drunkenness, paid a fine of $25.00 and was admitted to the Mid-Missouri Mental Health Clinic. Upon his release from the clinic on October 25, 1976, he entered Phoenix House, a halfway house, on condition that he do no more drinking. His probation violation report states that he left Phoenix House that day without proper permission and visited a number of people in out-state Missouri. He tried to report to his probation officer by telephone the next day, but was unsuccessful, and the following day he returned to Phoenix House, where he was arrested for leaving the area without the permission of his probation officer.

On December 6, 1976 a hearing was held in Gasconade County Circuit Court on the allegations that petitioner had violated certain conditions of his probation, in particular conditions 1, 2, and 9, supra. Petitioner claims that he received no written notice of the alleged violations of his probation, other than of condition 2, prior to the hearing itself. Respondent counters this assertion with the argument that the hearing officer signed an affidavit to the effect that he directed a copy of his report, which listed the violations, be sent petitioner. Parenthetically, we point out that such an affidavit is not sufficient evidence that the report was actually received even to make the question of receipt a debatable one. Such proof would require either proof of proper mailing, Price v. Ford Motor Credit Co., 530 S.W.2d 249, 250 (Mo.App.1975), or proof of the chain of handling of the report to show that by following normal business custom a direction that a report be sent to a probationer would result in its proper mail- . ing. See, e. g., First National Bank of Independence v. Mid-Century Ins. Co., 559 S.W.2d 50, 52 (Mo.App.1977); Armour and Co. v. American Automobile Ins. Co., 336 Mo. 551, 80 S.W.2d 685, 688-90 (1935). Here the probation officer’s statement that he had directed the report be sent petitioner does not afford any basis for finding that petitioner received the report in the face of his contention that he did not receive it. We thus proceed on the basis that no report, and thus no notice, of the charges that petitioner had violated conditions 1 and 9 of his probation was received by petitioner.

Petitioner appeared in person at the hearing. The judge asked petitioner if he was represented by an attorney, to which petitioner replied “No, sir, I can’t afford one, in the first place.” Petitioner was not informed that he had a right to at least request a lawyer be appointed and no further inquiry was made into whether petitioner desired a lawyer, or whether a lawyer was necessary in his case.

Petitioner admitted violation of conditions of parole 1 and 9, failure to report an arrest and use of alcohol, but did not admit violation of condition 2, leaving the area without authorization, the only claimed violation of which he had written notice prior to the hearing. The judge permitted some explanatory remarks by petitioner, but refused to permit petitioner to read a statement which he had prepared, apparently by way of explanation of his actions. The judge concluded that, as petitioner had violated the conditions of his probation, the court would revoke probation. Therefore on December 6, 1976, the judge ordered petitioner’s probation revoked and ordered him to serve the sentences imposed on May 5, 1975.

On June 17, 1977, petitioner filed a pro se petition for a writ of habeas corpus in this court, alleging that his probation had been revoked illegally because he had not been given credit on his sentence for probation time served and because the court failed to make written findings of the reasons for the probation revocation. On July 11, 1977, this court ordered respondent to show cause why a writ of habeas corpus should not issue, and on October 3, 1977, a preliminary writ issued from this court. In his reply, petitioner dropped his claim for probation time and instead alleged that the violations of due process noted at the outset of this opinion and gone into below had occurred, thus invalidating his probation revocation hearing and necessitating his release under the standards set out in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Before we turn to a consideration of these claims, two additional issues raised by respondent must be dealt with.

I.

A. In his jurisdictional statement, respondent asserts that, pursuant to rule 91.-59, a petition for habeas corpus should be filed in the first instance in the circuit court for the county in which the prisoner is confined. This argument was rejected by the court of appeals, Kansas City district, in Reiter v. Camp, 518 S.W.2d 82, 84 (Mo.App.1974), on the grounds that (1) rule 84.22, which provides that no original remedial writs, except habeas corpus, will be issued by an appellate court where an adequate remedy could be had by filing in a lower court in the first instance, and (2) Ex parte McCarter v. Hinton, 434 S.W.2d 14, 16 (Mo.App.1968) and Ex parte Hagan, 295 Mo. 435, 245 S.W. 336, 337 (Mo. banc 1922), which hold that “constitutional authority to issue and determine habeas corpus proceedings cannot be diminished or curtailed by legislative enactment”, Reiter v. Camp, 518 S.W.2d at 84, support the jurisdiction of appellate courts to determine writs of habe-as corpus in the first instance.

Respondent contends that Ex parte Carter and Ex parte Hagan refer only to legislative actions to curtail habeas corpus, not to judicial action pursuant to Supreme Court rule, and that in any case, any implication in Reiter that a venue rule for the filing of a writ of habeas corpus would unconstitutionally suspend the writ can no longer be the law in light of this court’s decision in Wiglesworth v. Wyrick, 531 S.W.2d 713 (Mo. banc 1976), that rule 27.26 does not unconstitutionally suspend the writ of habeas corpus. Finally, respondent asserts that rule 91.59 and rule 84.22 can be harmonized; that is, that rule 84.22 simply excepts habeas corpus from its provisions and does not mandate where it can or cannot be filed, but that rule 91.59 supplements rule 84.22 by requiring writs of habeas corpus to be filed in the circuit court of the county in which a petitioner is incarcerated.

Wiglesworth did hold that rule 27.26 goes to venue, not jurisdiction, and therefore does not suspend the writ of ha-beas corpus. It may be that a similar rule requiring that venue for determining a writ of habeas corpus, in the first instance, would also be found constitutional through application of the principles enunciated in Wiglesworth. However, no such requirement now exists as a mandatory rule. While it would be more expeditious, and therefore more advantageous, in most instances, for a petition for a writ of habeas corpus to. be made first to the circuit court in cases in which there is a dispute as to a factual issue, no rule requires that such a petition be first filed therein. In a case in which factual issues are in dispute, this court may refer the matter to a circuit court for determination of fact issues or may appoint a master who will hold a hearing on the evidentiary questions and, in either event, the findings can then be certified to this court. Rule 91.59 does not require a different result. Even if it can be said to supplement rule 84.22 in the manner asserted by respondent, by its terms rule 91.59 applies only to an application for a writ of habeas corpus which is filed by “a person who is held in custody on a charge of crime or misdemeanor.” Petitioner herein is held on the basis of a conviction, not on the basis of a “charge of crime”, as would be a person awaiting trial. Respondent’s arguments that if someone is convicted he was necessarily charged with a crime, and that a probation revocation is not a conviction and therefore must be a charge of crime, overlook the fact that petitioner is being confined on the basis of his conviction, not on the basis of the original charge of a crime or on the basis of his probation revocation. The latter merely removed the obstacle to execution of the sentence assessed on the basis of his conviction. It cannot in itself form the basis of confinement unless there is a sentence which takes effect as a result of the probation revocation.

Thus, while a petition for a writ of habe-as corpus should be filed in the circuit court in the first instance in cases in which factual issues are in dispute, see McIntosh v. Haynes, 545 S.W.2d 647, 653 (Mo. banc 1977), nothing requires that such a writ be filed therein. This court has jurisdiction to issue the writ and it is properly filed here.

B. As a second procedural issue, respondent contends that the petition should be dismissed because the points relied on are conclusory and do not meet the requirements of rule 84.04. Respondent’s complaint has some merit. However, this court prefers not to dismiss on a technical point unless it is compelled to do so, particularly in a habeas corpus proceeding such as this one in which federal constitutional violations are alleged. Cf. State v. Reynolds, 422 S.W.2d 278 (Mo.1967). As will be gone into below, petitioner’s due process rights were in fact violated. Inasmuch as rule 91.05 makes it the duty of this and every other court to issue a, writ of habeas corpus for any person, regardless whether application for such a writ is presented, where there is evidence from judicial proceedings before it that a person is illegally confined, we cannot, in conformity with rule 91.05, dismiss the suit at this juncture.

II.

We now address the merits of petitioner’s claim.

The basic constitutional requirements for a probation revocation hearing have been set out by the Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), which applies the standards for parole revocation hearings enunciated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) to probation revocation hearings, and adds the additional requirement that a probationer will sometimes have a right to representation by counsel. The Morrissey and Gagnon standards have been adopted by the St. Louis and Kansas City Courts of appeals, Moore v. Stamps, 507 S.W.2d 939 (Mo.App.1974); Brandt v. Percich, 507 S.W.2d 951 (Mo.App.1974); Reiter v. Camp, 518 S.W.2d 82 (Mo.App.1974); Ryan v. Wyrick, 518 S.W.2d 89 (Mo.App.1974), with the modification that, particularly in light of the fact that in Missouri probation revocation is conducted by a judicial officer, and not an administrative board, one hearing rather than both a preliminary and a final revocation hearing may be held if it is afforded within a reasonable time and contains all the due process requirements for a final hearing. Ewing v. Wyrick, 535 S.W.2d 442, 444 (Mo. banc 1976). As modified, the minimum requirements of due process, as set out in Gagnon and Morrissey, which must thus apply to probation revocation in Missouri, are:

“(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.” Morrissey v. Brewer, supra, at 489, 92 S.Ct. at 2604.” Gagnon, 411 U.S. at 786, 93 S.Ct. at 1762.

It is in light of these standards that we consider petitioner’s allegations of a violation of his due process rights in the conduct of his probation revocation hearing.

III.

Two basic types of errors are alleged. The first goes to notice. Petitioner claims that he did not receive written notice of the charges which were to be brought against him at the hearing and thus did not have adequate time to prepare a defense. Since he admitted that he had committed the violations, and makes no claim of involuntariness in admitting them, the lack of notice is harmless as to the first determination to be made at a probation revocation hearing — did the violations occur. However, a probation revocation hearing is a two-part procedure. If it is determined that a probationer did violate the conditions of his probation, the hearing officer, or, in Missouri, the judge, must then make a determination as to whether probation should be revoked as a result thereof or whether some other less drastic alternative should be invoked. Morrissey, 408 U.S. at 478-80, 92 S.Ct. 2593; Gagnon 411 U.S. at 784, 93 S.Ct. 1756. It is here that the lack of notice to petitioner becomes relevant. Without notice, both of the nature of the charges and of the evidence to be presented against him, petitioner could not effectively prepare an explanation of the reasons for his actions and of any extenuating circumstances. Even though he admitted commission of the violations, he was entitled to notice of the violations alleged and of the evidence against him, and to an opportunity to be meaningfully heard, to present witnesses and documentary evidence and to confront adverse witnesses. These rights are just as important to the second as to the first stage of the probation revocation hearing, for they would bear on the appropriate level of discipline to be imposed. Without notice that alcohol-related problems were to be raised at the hearing, petitioner had no opportunity to bring in witnesses who could testify as to the circumstances of his use of alcohol, to support in the community to aid him in rehabilitation, or to the existence of treatment programs which would be beneficial in his case. This is not a situation in which the alleged violation was commission of a major crime, or a crime similar to that for which the probationer was originally convicted, but rather is a violation due to a personal problem of alcohol abuse. As such, alternative treatments were certainly sufficiently appropriate to be entitled to some consideration. Without notice of the alleged violations, petitioner did not have an opportunity to demonstrate what alternatives might be available.

Respondent contends that the judge clearly indicated that he felt petitioner’s violations were very serious, that he would not have been influenced by further explanations, and thus that any defects in notice or hearing were harmless under the standards of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Standlee v. Rhay, 557 F.2d 1303, 1307-08 (9th Cir. 1977). The propriety of this action by the judge will be gone into below. Here we simply note that respondent has misapprehended the meaning of Chapman and Rhay. Chapman does not require a defendant to show that he was prejudiced by a violation of the law, but rather provides that error of a constitutional magnitude may be ignored where, but only where, “the court [is] able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. at 24, 87 S.Ct. at 828. The burden is thus on the state to show that the defects in notice and hearing were harmless, not on the petitioner to show that they were not. Id. Rhay does not hold to the contrary. Rather, in Rhay the ninth circuit found that, since the Supreme Court had indicated in Gagnon, 411 U.S. at 782 n.5, 93 S.Ct. 1756, that use of a transcript rather than the calling of witnesses would be permissible, the right to confront live witnesses was not a basic due process right in the context of a probation revocation hearing' and thus the probationer had the burden of showing that prejudice resulted from use of a transcript only. 557 F.2d at 1307-08. Rhay has no relevance where the petitioner alleges violation of the rights of notice, disclosure of evidence and the right to be meaningfully heard and to present witnesses, due process rights declared by the Supreme Court to be minimum requirements of due process. Gagnon, 411 U.S. at 786, 93 S.Ct. 1756. In the absence of a showing by the state that even if petitioner had had proper notice he would not have been better able to explain mitigating circumstances and present alternative remedies, it could not meet its burden of showing lack of prejudice as a result of those violations.

The state contends, as noted above, that the transcript of the hearing does show that no prejudice resulted, since the judge clearly indicated that he would not consider any explanations. However, as gone into below, the judge was required to consider petitioner’s evidence and to consider alternatives to incarceration. If he did not do so, he did not comply with the due process requirements set out in Morrissey and Gag-non. Respondent cannot rely on an additional failure to follow these due process standards in order to justify its own failure to follow other such standards. No showing that the error was harmless has been made.

IV.

We now reach the question whether petitioner was in fact afforded the second step of the revocation hearing guaranteed him under Gagnon — the consideration of alternative responses to the probation violations found. We find that he was not.

In Gagnon, the Supreme Court noted: “ ‘The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?’ ” Gagnon at 784, 93 S.Ct. at 1760, quoting Morrissey 408 U.S. at 479-80, 92 S.Ct. 2593.

Of course, the court in Gagnon was here referring to what steps must be taken in an administrative determination of probation revocation, not a judicial one. However, the same principles apply. Accord, Moore v. Stamps, 507 S.W.2d at 949-50. The mere fact of violation of parole or probation conditions alone should not automatically lead to revocation, without consideration of alternative remedies. That the court felt such alternatives workable and important is made clear in Gagnon, 411 U.S. at 787-88, 93 S.Ct. 1756, where it rejects making representation by counsel a universal requirement of a revocation hearing partly because to do so would make the hearing more akin to a trial and thus “the hearing body may be less tolerant of marginal deviant behavior and feel more pressure to reincarcerate than to continue nonpunitive rehabilitation.” Gagnon at 788, 93 S.Ct. at 1762.

Although in many cases no workable alternatives to incarceration may present themselves, as where a probationer previously convicted of burglary has again committed the same or a similar offense, other alternatives were certainly worthy of consideration here. The court could have considered an Alcoholics Anonymous program, counselling, a half-way house specializing in alcohol-related problems, and other similar avenues of help. Of course, the judge, in his discretion, may have concluded, after weighing the alternatives, that none would be appropriate and that incarceration was the only realistic alternative. But at least more than a cursory consideration of alternatives is required. Here, the judge stated, “Well, there doesn’t seem any need to have a hearing on whether you violated your probation if you are admitting you violated it.” He later refused to permit petitioner to offer a statement as to the reasons for his violations, stating: “The only thing I’m interested in is what you have told me; you violated your probation. There’s no use wasting any more time, I’m going to revoke your probation. What they do with you up at the institution, I don’t know. But a rule is a rule . . . ”

It is clear that the judge did not consider alternatives to incarceration or the relative benefits of incarceration to petitioner and to society, as opposed to the benefits of some alternative treatment, but simply decided to incarcerate on the basis of the broken conditions of probation themselves. On these facts, this was an abuse of discretion. The judge at a probation revocation hearing must allow a probationer a meaningful opportunity to present his evidence, and must consider that evidence. Here, it is clear that the explanations given by petitioner for his drinking were not considered in determining whether or not to revoke probation, and that the documentary evidence offered was not even permitted to become a part of the record because of the judge’s apparent decision not to consider it regardless of its content. As such, petitioner’s due process right to a meaningful opportunity to present his evidence was denied him.

We thus conclude that (1) petitioner was unconstitutionally deprived of notice of the nature of the charges against him and of the evidence to be presented against him, and that the state has not met its burden of showing that no' prejudice thereby resulted to petitioner’s ability and right to present evidence in his defense and to explain the circumstances of his actions and suggest alternatives to incarceration, and (2) the court was incorrect in excluding documentary evidence by petitioner and in not considering petitioner’s explanation for his actions simply because the court felt that this evidence was irrelevant once petitioner had admitted the violations. The judge was required to give petitioner an opportunity to be heard on the question of the remedy for the violations of probation as well as on the question of whether the violation itself had occurred. Only after this second inquiry could the judge, in his discretion, make a decision as to whether incarceration or some alternative treatment was most appropriate. For these reasons, we conclude that petitioner must be remanded to the sheriff’s custody either for restoration to his status as a probationer and release from custody, if so advised, or for a new hearing at which the proper standards are to be observed, including written notice of the charges and an opportunity to present evidence as to alternatives to incarceration. In light of the fact that upon remand there may be a new probation revocation hearing, we will address the two remaining issues raised by petitioner.

V.

Petitioner also complains that he was not accorded a right to counsel, and that his case is one in which such representation would have been appropriate. We cannot say whether or not counsel was necessary.

The fact of violation is quite simple. However, counsel may have proved useful in explaining mitigating circumstances or in searching out alternatives to incarceration.

In this case, the judge not only did not give consideration to whether or not petitioner needed counsel, he did not inform petitioner that he had a right to request that counsel be appointed. See Gagnon at 790, 93 S.Ct. 1756. The respondent would have us hold that under these facts, even if petitioner had requested counsel, it would not have been error to deny him counsel and therefore no prejudice resulted. However, the question is not whether it would have been error not to appoint counsel, but whether it was error not to inform defendant of his right to counsel and to consider whether counsel would have been appropriate in this case. The respondent himself cites substantially the following language of Gagnon, 411 U.S. at 790-91, 93 S.Ct. at 1763-64:

“[T]he decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system. Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.
“It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.”

The failure to consider whether petitioner had a due process right to representation at the hearing denied him the opportunity to assert that right. While in most cases in which violations are admitted no counsel will be necessary, counsel may be necessary in some instances to explain the circumstances of the violations if they are shown to be complex, or to suggest alternative treatments especially where, as here, the violations did not themselves involve the commission of another serious crime. Upon remand, if a new hearing is held, petitioner is to be informed of his right to request counsel and if he does so request, a determination must be made as to whether counsel is necessary in his case in order to protect his due process rights. If the judge determines that counsel is not necessary, he should state the grounds for his decision clearly in the record.

Petitioner’s final contention is that because no written statement of the reasons for revocation and the evidence relied on was made, his due process rights were violated. It is true that the formal revocation order did not state these facts. However, as the court of appeals held in Ryan v. Wyrick, 518 S.W.2d at 94, if the record of the proceeding clearly shows what reasoning and evidence were relied upon to revoke probation, the due process rights of the probationer are satisfied. Here the record made clear that petitioner’s probation had been revoked for violation of condition 9 of his probation, use of alcohol. Since the petitioner has thus been informed of the reasons for the revocation and since the sufficiency of these reasons and the evidence supporting them are preserved for appellate review in the transcript of the hearing, no prejudice resulted and no due process right has been violated, although the better and safer practice is to set out a short statement of the reasons for revocation and the basis for those reasons in the formal revocation order itself.

Petitioner is ordered released from the custody of the respondent and further ordered remanded to the custody of the sheriff of Gasconade County and is restored to his status as a probationer being held under custody pending a hearing or other disposition of the allegations that he has violated the conditions of his probation agreement, any such hearing to be conducted upon notice and in accord with the foregoing opinion.

MORGAN, C. J., BARDGETT, PINCH, DONNELLY and RENDLEN, JJ., and SOMERVILLE, Special Judge, concur.

SIMEONE, J., not participating because not a member of the court when cause was submitted.

      . In general, in habeas corpus the issues are framed by the return and the traverse by way of reply. Ryan v. Wyrick, 518 S.W.2d 89, 91 (Mo.App.1974).

      . Rule 91.59 provides, in part, as follows:
      Application to What Court First Made When a person who is held in custody on a charge of crime or misdemeanor applies for the benefit of Rule 91 his application, in the first instance, shall be to the judge of the circuit court for the county in which the applicant is held in custody, if at the time of the application, such judge be in the county

      .Rule 84.22 provides as follows:
      Granting original writs
      No original remedial writ, except habeas corpus, will be issued by an appellate court in any case wherein adequate relief can be afforded by appeal or by application for such writ to a lower court.

      . This requirement will be discussed in greater detail infra.


text:
    STATE ex rel. Charles R. WILLMAN, Relator, v. Honorable Charles H. SLOAN, Special Judge, 5th Judicial Circuit, Respondent.
    No. 60567.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.

      Wendell E. Koerner, Jr., St. Joseph, for relator.
    Douglas N. Ghertnor, Kansas City, for respondent.
   SEILER, Judge.

This is an original action in prohibition. Relator asks us to prohibit respondent Sloan from empaneling a jury to determine the damages, if any, petitioner suffered as a result of breach of a covenant not to compete by defendant below.

The case is before Judge Sloan on remand from this court, Willman v. Beheler, 489 S.W.2d 770 (Mo.1973). In Willman, this court ruled in favor of relator in his suit to enjoin defendant Beheler from breach of his covenant not to compete with plaintiff Willman, his former medical partner, within a twenty-mile radius of St. Joseph, Missouri for a five-year period. However, because only a few months of the five-year period remained at the time of our decision, we concluded that enforcement of the covenant would not be sufficient or proper equitable relief. Because equity will not permit a wrong to go without a remedy, and because “[o]nce having acquired jurisdiction equity will retain it, under a prayer for general relief (there was such a prayer in this petition), to administer full and complete justice, within the scope of pleadings and evidence, between the parties,” id. at 778, we remanded for a determination of damages due to the breach. We noted that “[w]hile a court of equity is reluctant to, and ordinarily does not, grant a mere money judgment, it may do so in an appropriate case.” Id.

After remand a hearing was scheduled for January 16, 1978. On January 12, 1978, defendant requested and respondent granted an order to empanel a jury at law (not merely an advisory jury), to determine the remaining issues of damages. On January 16,1978, relator filed his petition for a writ of prohibition. On February 22, 1978 our provisional rule issued.

The Missouri constitution provides “[tjhat the right of trial by jury as heretofore enjoyed shall remain inviolate . .”, Mo.Const. art. I, § 22(a). However, there is no right to trial by jury in a case in equity, State ex rel. Duggan v. Kirkwood, 357 Mo. 325, 208 S.W.2d 257, 262 (banc 1948). Thus, defendant’s right to a jury depends on whether the cause is tried at law or in equity. Relator, plaintiff below, contends that his suit began as and remains one in equity, that implicit in this court’s opinion in Willman was the finding that equity retain jurisdiction in order to grant relator full equitable relief, and that defendant thus does not have a right to a jury at law on the issues of damages. Although damages are usually a legal remedy, a court of equity may decree them where they are the relief necessary in order to do equity. Willman v. Beheler, 449 S.W.2d at 778.

Respondent replies that because the only issue on remand is whether relator sustained damages due to the breach of the restrictive covenant, the case, while originally filed in equity, has been converted into a case in which only the legal issue of damages remains. Since an action is generally considered legal rather than equitable when the only relief sought is money damages, thus entitling a defendant to trial by jury, Jaycox v. Brune, 434 S.W.2d 539, 542-43 (Mo.1968), to deny defendant a jury in this case would deny him his right to trial by jury under Mo.Const. art. I, § 22(a). See Attebery v. Attebery, 507 S.W.2d 87, 93 (Mo.App.1974).

The principles cited by respondent are valid, but they do not meet the issue to be resolved in this case. The usual rule, as quoted above from Willman, is that equity will retain jurisdiction of a cause once it has acquired it in order to afford full relief. As respondent notes, an important exception to this rule applies “when the facts relied on to sustain the equity jurisdiction fail of establishment,” Jaycox, 434 S.W.2d at 543 (emphasis added), because “a court of equity does not have jurisdiction to render a judgment for a plaintiff on legal issues in the absence of a finding that some equitable right of the plaintiff has also been violated.” Krummenacher v. Western Auto Supply Co., 358 Mo. 757, 217 S.W.2d 473, 475 (banc 1949); Shultz v. Kline, 552 S.W.2d 333, 334 (Mo.App.1977). However, this exception applies only where the only relief sought is legal, or where the equitable claims of plaintiff are dismissed or found adversely to him, see Krummenacher, 217 S.W.2d at 475; Miller v. St. Louis & Kansas City Ry. Co., 162 Mo. 424, 63 S.W. 85, 87 (1901); Lee v. New Age Federal Savings & Loan Ass’n, 425 S.W.2d 271, 273-74 (Mo.App.1968) (equitable issues settled after filing but before trial), and thus there remains no equity in the case.

However, this court found in Willman v. Beheler, 499 S.W.2d at 777, that there was merit to relator’s claim, and that he was entitled to enforce the covenant in equity. The cases cited by respondent in which equity lost jurisdiction because plaintiff’s equitable claims were denied are thus inappo-site.

In Willman, we further determined that since an injunction would be ineffective, the best manner by which the restrictive covenant could alternatively be enforced was damages, and remanded for a determination of whether damages in fact resulted from the breach and the extent of them. In so doing, we cited extensively cases holding that a court of equity may retain jurisdiction of a case to grant damages where equity requires this form of relief in the circumstances. Id. at 778. See, also Rockhill Tennis Club of Kansas City v. Volker, 331 Mo. 947, 56 S.W.2d 9, 18-20 (1932); Dunning v. Alfred H. Mayer Co., 483 S.W.2d 423, 428 (Mo.App.1972); Supreme Lodge, K.P. v. Dalzell, 205 Mo.App. 207, 223 S.W. 786 (1920). The clear implication was that the court on remand was to retain equity jurisdiction of the cause. As such, defendant would not be entitled to a jury trial. State ex rel. Duggan v. Kirkwood, 208 S.W.2d at 262; see Pittman v. Faron, 315 S.W.2d 836, 839 (Mo.App.1958). We thus make our provisional rule absolute, prohibiting respondent from empaneling a jury at law for the hearing of the issue on damages in the Willman v. Beheler case.

MORGAN, C. J., BARDGETT, FINCH, DONNELLY and RENDLEN, JJ., and SI-MEONE, Special Judge, concur.


text:
    STATE ex rel. PEABODY COAL COMPANY, Relator, v. The Honorable Jack A. POWELL, Judge of the Circuit Court of Greene County, Missouri, Respondent.
    No. 60665.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.

      James F. Mauze, St. Louis, Shook, Hardy & Bacon, David H. Clark and Elwood L. Thomas, Kansas City, for relator.
    William H. Sanders, Howard F. Sachs, Kansas City, for respondent.
   SEILER, Judge.

This is an original action in prohibition. The question presented is whether the respondent judge, after having ordered a change of venue, can later, over the objection of one of the parties, set the order aside and make another order transferring the case on a change of venue to a different county from the one originally named. Relator asks us to prohibit the judge from doing so and to require him to reinstate his original order.

The matter arises this way: relator Peabody Coal Company filed an action against defendant Kansas City Power & Light Company in Henry County, Missouri for declaratory judgment and for actual and punitive damages. Defendant filed an application for change of venue and an application for change of judge. The regular judge disqualified himself and this court assigned respondent to rule on the application for change of venue.

On December 7, 1977, both parties appeared before respondent in Greene County and after hearing argument on where the case should be sent on change of venue, the respondent ruled in open court from the bench that the case would be transferred to St. Louis County as the major metropolitan area where the least amount of local contact with the parties existed and then entered the following order on his docket sheet:

“12/7/77 — Parties appear by counsel. Defendants application for change of venue argued. Change of venue ordered to St. Louis County, St. Louis, Missouri on the original record.”

Later that afternoon defendant’s counsel ex parte raised the question with respondent as to whether, in view of § 508.140, RSMo 1969, a change of venue could be awarded other than to some other county in the adjoining or next adjoining circuit. Respondent thereupon, without notice to relator, entered the following order on the docket sheet:

“12/7/77 — The above order set aside for further argument on law. Parties given ten days to file suggestions.”

Subsequently the parties filed briefs and respondent on December 27,1977, by letter, indicated his intention to order the case transferred on change of venue to Jackson County, Missouri “where there can be no question that the court has authority to act.”

Thereafter the parties appeared before respondent on January 4, 1978. A record was made as to what had occurred and respondent granted relator additional time in which to seek extraordinary relief before entering his intended order. Relator filed its action for extraordinary relief with the court of appeals, Kansas City district.

The Kansas City district requested us to transfer the case before opinion, believing that the case is more appropriate for this court in light of the possible conflict between our rule 51.03 and the above-mentioned statute and the possible involvement of Mo.Const., art. V, § 5. We acquiesced, ordered the transfer, and will proceed to decide the case as though it had originally been filed here.

The first question to be resolved is whether, having made the order transferring the case to St. Louis County, respondent was without power and authority to rescind the order because if not, then, having revoked the order, there is no question that he could send the case to Jackson County under either the rule or the statute and we need look no further.

Relator takes the position that respondent lost jurisdiction completely and totally upon the making of the docket entry changing the venue to St. Louis County. Defendant Kansas City Power & Light contends that respondent possessed inherent power to control and change his own order.

Rule 51.13, adopted November 15, 1974, effective September 1, 1975, provides as follows:

“51.13 Order of Change of Venue May be Annulled, When
A court which has granted a change of venue shall have the power to annul the order, with consent of the parties, at any time before the papers or transcript are filed in the court to which the venue was changed.”

Here the parties did not consent to the respondent’s withdrawal or annulment of his order transferring the cause to St. Louis County. Plaintiff opposed it. Therefore, the condition under which respondent could set the order aside did not exist. By specifically providing for a limited situation under which the original court has power to retract its order, this court has necessarily provided that no such power rests with the original court in situations not provided for by the rule. There would be no point in adopting rule 51.13 giving the court power to annul its change of venue order in the narrow situation where the parties consent if the court already possessed the power to make such a change without the consent of the parties.

Respondent argues that under rule 75.01, whereby the trial court “retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time”, he was authorized to do what he did in setting aside the December 7 order transferring the cause to St. Louis County.

We do not agree. Rule 75.01 does not apply to the rule situation before us, which is covered by a specific rule, rule 51.13. If rule 75.01 were to apply, we would have the anomalous situation where the judge ordering the change of venue would have control over the cause for thirty days, even though in the meantime it was proceeding under a different judge in the county to which it had been sent.

Counsel for respondent argues further that respondent has not, in reality entered any order in this case or taken “any definitive action.” This argument is bottomed on the fact that the proceedings before Judge Powell, the respondent, took place not in Henry County, but in Greene County, where respondent is circuit judge, and on the further fact that the docket sheet used by Judge Powell was a Greene County form, unnumbered, and said to be of no more significance than a “personal diary” of the judge’s activities.

Under rule 55.29, respondent was authorized to hold the hearing outside Henry County on the determination of the county to which the cause was to be transferred on change of venue, even if the parties did not consent (although it is clear that the parties were all agreeable to holding the hearing in Greene County). The fact that respondent did not use a docket sheet with the words “Circuit Court of Henry County” at the top and instead used a form with the words “Circuit Court of Greene County” on it does not render meaningless and of no legal effect the entries made thereon by respondent. The names “Peabody Coal Company” and “Kansas City Power and Light Company” are typed on the docket in the proper places as plaintiff and defendant. The same docket sheet was used by Judge Powell for the entry he made later in the day on December 7 purporting to set aside his earlier order. It also was used by Judge Powell for subsequent entries made on December 8, 15, 27, 29 and January 4.

We believe it is clear Judge Powell was using the docket sheet in question as the official docket sheet in the Henry County case for the purpose of performing the duties imposed on him by the order of this court assigning him to rule on the change of venue application. We overrule respondent’s contention that the entries made thereon by respondent do not constitute official orders in the Henry County case.

The remaining question is whether rule 51.03 or § 508.140 governs as to the range within which the case may be transferred. Rule 51.03(c), adopted January 19, 1973, effective September 1, 1973, modified the prior rules on change of venue by providing that the court “shall order the case transferred to some other county convenient to the parties, first giving all parties the opportunity to make suggestions as to where the case should be sent.” The prior rules, 51.06 and 51.07, limited the removal or transfer to some county in the same, adjoining or next adjoining circuit. Section 508.-140, RSMo 1969, which sets forth procedure on application for change of venue, contains the same limitation.

Mo.Const., art. V, § 5 provides “The supreme court may establish rules of practice and procedure for all courts. The rules shall not change substantive rights .” Where such a rule adopted by this court under the express authority of the constitution is inconsistent with a statute and has not been annulled or amended by later enactment of the legislature, the rule supersedes that statute. State ex rel. Bone v. Adams, 365 Mo. 1015, 291 S.W.2d 74, 77; State v. Fleming, 451 S.W.2d 119, 121 (Mo.1970); State v. King, 380 S.W.2d 370, 375 (Mo.1964). The rules which permit change of venue and transfer of cases thereunder are procedural. They do not create, destroy or modify anyone’s primary rights.

Therefore, respondent was authorized to transfer the case to St. Louis County and, as earlier stated, he did not have authority to rescind or annul his order in the absence of the consent of the parties, and thus the cause remains transferred to St. Louis County.

The provisional rule is made absolute.

MORGAN, C. J., BARDGETT, FINCH, DONNELLY and RENDLEN, JJ., and SI-MEONE, Special Judge, concur.

      . St. Louis County is not within an adjoining or next adjoining circuit to Henry County.

      . Rule 55.29 provides, in part, as follows: “No hearing, other than one ... to determine the county to which a civil action is to be sent on change of venue, shall be conducted outside the county without the consent of all parties affected thereby.”

      . The rule was repealed and readopted without change November 15, 1974, effective September 1, 1975.


author: SIMEONE, Judge.

text:
    In the Matter of John ALPERS, Jr., Respondent.
    No. 60261.
    Supreme Court of Missouri, En Banc.
    Dec. 18, 1978.
    Lane L. Harlan, Timothy C. Harlan, Boonville, for informant.
    William E. Gladden, Houston, for respondent.
   SIMEONE, Judge.

This is a disbarment proceeding instituted by the Advisory Committee under Rule 5. The proceeding was instituted on July 5, 1977 by the filing of an information against the respondent John Alpers, Jr. of Cabool, Missouri. The information alleged that the respondent did “wrongfully, unethically and unprofessionally, and in violation of his duties as a lawyer, engage in professional misconduct. . . . ” The acts of misconduct alleged were in several counts. Three of the counts related to unprofessional conduct relating to the neglect of three decedents’ estates and another count (Count V) alleged that respondent failed to take the necessary action to collect a judgment obtained in Texas after being employed to do so. Count IV was a general charge relating to the failure to complete the proper administration of several estates. No specifics were alleged and as to this count a motion to dismiss was sustained. The respondent denied the allegations. On order of this court, the Honorable Herbert K. Moss was appointed master to hear evidence. A hearing was held on January 24 and 25, 1978. The master made detailed findings of fact and conclusions of law and recommended public censure.

There is no need to state each and every faet and detail in the processing of the three estates and the failure to take the necessary action to collect the Texas judgment. Suffice it to say that the master found the respondent violated DR6-101(A)(3) of Rule 4 in each of the three estate cases and the Texas judgment case and DR7-101(A)(2) in the latter case.

There was substantial evidence to support these findings. The respondent in each of the three estate cases did not carefully follow the statutes relating to the probate of estates and was delinquent and neglectful in failing to file inventories, or seek extensions, and other violations. There was no fraud or defalcations in the administration of the estates. Neglect in several of the cases could well be construed to be the partial fault of one or more of the administrators rather than the respondent. But there is no doubt that there was substantial evidence that the respondent was neglectful and dilatory in the handling of the estates and did not act in a manner of a professional attorney.

As to the Texas judgment respondent admitted that he should have replied to the numerous letters of the forwarding Texas attorney but failed to do so. He gave no particular explanation except that he had had domestic problems over the past few years which are now resolved and he has custody of two of his children. The master found that the respondent feels he is now a “more stable person with a better outlook on life after his divorce.” Under oath, he stated he is willing to and will apply himself diligently to represent his clients. The master recommended public censure.

In view of this lengthy record which shows that the respondent was neglectful of legal matters entrusted to him in violation of DR6-101(A)(3) and in the failing to carry out a contract of employment in violation of DR7-101(A)(2), we believe that a proper disposition would be to suspend the respondent from the practice of law as hereinafter specified. The neglect of the respondent in the processing of these three estates, while not altogether of his doing, was of sufficient magnitude to require more than a public censure. It is the duty of a lawyer to act with competence and proper care and to represent a client zealously. The respondent here fell below the standards of a competent and efficient attorney.

Neglect of duty to clients is sufficient for disciplinary action. In re Eldredge, 530 S.W.2d 221 (Mo. banc 1975)— failure to file brief in criminal case and other neglect relating to client; In re Pendergast, 525 S.W.2d 341 (Mo. banc 1975)— failure to handle divorce and adoption proceedings. See Annot., 96 A.L.R.2d 823, 870-874 (1964).

Discipline of an attorney may be effected by disbarment, suspension or censure. Disbarment is an extreme measure of discipline and should be resorted to only in cases where the lawyer demonstrates an attitude or course of conduct wholly inconsistent with approved professional standards. To disbar it should be clear that he is one who should never be at bar; otherwise suspension is preferable. In re Sullivan, 494 S.W.2d 329, 334 (Mo. banc 1973). The respondent here has been city attorney for a number of years and has been at the bar since 1959. He has expressed his willingness, and the master so found, to diligently represent his clients. The master found no acts of fraud on the part of the respondent. In such circumstances suspension will serve the ends of justice. In view of this proceeding the respondent is admonished that in the event he does not carry out his willingness to diligently represent his clients and fully complete any matter that may yet have to be accomplished in the administration of these estates, more severe measures may well have to be undertaken.

The Petitioner Advisory Committee contends the master erred in excluding evidence pertaining to the status of other estates being handled by the respondent. These were not specifically charged in the information — the allegation being a general one. Rule 5.15 provides that the information shall set forth in brief form the specific act or acts of misconduct charged. That was not done. The master did not err. If respondent is to be disciplined for those additional occurrences, a separate proceeding specifically inquiring into those matters would be necessary.

It is ordered that respondent be suspended indefinitely from the practice of law with leave to apply for reinstatement after the expiration of ninety days from the date of rendition of this decision upon a showing that he is a person of good moral character and fully qualified to be licensed as a member of the Bar.

All concur.

      . One of the estate cases was handled in a strange manner. A person had been declared an incompetent in 1964 and died in 1966. Although the person had died the estate was distributed through the incompetency proceeding rather than a probate proceeding. This was done years after the person had died. Not all of the irregularities were the fault of the respondent.


author: SMITH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James P. HOLIDAY, Defendant-Appellant.
    No. 39350.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 19, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.
    Application to Transfer Denied Jan. 8, 1979.

      John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
    Robert C. Babione, Public Defender, Christelle Adelman Adler, St. Louis, for defendant-appellant.
   SMITH, Judge.

Defendant appeals his conviction by a jury of assault with intent to do great bodily harm and the resultant sentence of two years imprisonment. We affirm.

The evidence was sufficient for a jury to find that defendant assaulted Loretta Wallace by connecting to Ms. Wallace an electrical device whereby defendant over a two hour period introduced as much as twenty thousand volts of electricity at very low amperage into the body of Ms. Wallace twenty times. Defendant and Ms. Wallace had lived off and on with each other for approximately ten years. Their relationship was turbulent and marked by violence and jealousy from both sides. On the occasion in question, Ms. Wallace, who had left the apartment she shared with defendant, returned at his request to discuss things. When defendant did not receive answers acceptable to him concerning who had helped Ms. Wallace move, he taped her hands and feet together, attached wires to her left wrist and left ankle, plugged into an electrical outlet a spark coil, and when Ms. Wallace was slow in answering his questions or the answer was unsatisfactory would press a switch and give Ms. Wallace a shock. Defendant denied that he did what Ms. Wallace testified he did.

On appeal, defendant raises two points. The first is that the trial court erred in restricting his cross-examination of Ms. Wallace. The prosecutrix, a licensed practical nurse, had at one time given electrolysis treatments and she still possessed the electrolysis equipment. Loretta testified that she had done electrolysis and that it was for permanently removing surplus hair from the body. The court sustained an objection on grounds of relevance to the question, “How does it work?” The court also sustained objections to questions whether an electrolysis machine could emit varying degrees of electricity, why Loretta gave up the work, who licensed her and whether she lost her license. Defense counsel was able to ask Loretta whether in doing electrolysis work she used a machine which gave people an electrical shock, whether she still had the machine, and whether it was possible to burn and scar people with the machine. Loretta testified that an electrolysis machine emits galvanic current, she had used such a machine on herself once during training several years prior to this incident, she still had the equipment and she “would assume” you could scar and burn people with the machine “if you didn’t know the controls and everything.” She knew the controls.

It is well established that the extent and scope of cross-examination is largely within the discretion of the trial court but that great latitude should be given in a criminal case, especially with respect to impeaching a witness’s credibility. State v. Thomas, 552 S.W.2d 63 (Mo.App.1977).

There is no indication of a clear abuse of discretion in the instant case. Defendant’s brief indicates that the purpose of the questions on electrolysis was to impeach Loretta’s testimony by showing masochistic tendencies which would render her statements about the cause of her injuries untrustworthy as she had previously inflicted similar injuries on herself. The court did not foreclose all inquiry on this subject but merely restricted it to avoid lengthy discussion of collateral matters. The court’s prohibition of inquiry into how electrolysis “works” and whether the degree of current varies appears to be clearly within its discretion to regulate the extent and scope of cross-examination. We find the trial court allowed more than a reasonable latitude on collateral matters. State v. Johnson, 486 S.W.2d 491 (Mo.1972) [4, 5],

There was no error in the court’s refusal to permit inquiry into Loretta’s reasons for leaving this type of work, and whether she had lost her license, since there was no showing that these matters were relevant. Defense counsel, in her offer of proof, stated only that “subsequently, as I understand it, she either lost her license or lost her certification.” This is insufficient to establish the relevance of these matters. “The facts stated in an offer of proof must be specific and in sufficient detail to establish the admissibility of the evidence sought to be introduced and to demonstrate its relevance and materiality.” State v. Umfrees, 433 S.W.2d 284 (Mo. banc 1968) [1]. Defendant’s offer failed to meet this requirement and there was thus no error in its denial.

Defendant’s second assignment of error concerns the instruction given on voluntariness of his statements. The instruction given was MAI-CR 3.44 without the parenthetical statements about whether defendant understood what he was saying and doing at the time of the statement. The parenthetical statements are to be included only “if there is evidence that the defendant did not understand what he was saying or doing at the time of the statement.” See MAI-CR 3.44 Notes on Use 3.

Defendant testified that police visited him perhaps four times while he was hospitalized. He stated he made no statement about the alleged assault and told the police that he didn’t want to talk about it because his attorney had advised him not to. Defendant testified and hospital records show that he was taking medication while hospitalized but there was no evidence that such medication did in fact or would normally have any effect on defendant’s mental processes. There is no evidence that he did not understand what he was saying or doing at the time the alleged statement was given. We cannot conclude that the taking of medication in and of itself is sufficient to make the parenthetical additions mandatory. Defendant’s position was simply that the statement testified to by the police never was given, that this was a fabrication by police. In these circumstances, there was no error in the refusal to instruct on this issue.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: REINHARD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Lloyd Thomas THOMPSON, Defendant-Appellant.
    No. 38291.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Dec. 27, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Robert C. Babione, Public Defender, Edward J. Bippen, Jr., James Porter, Asst. Pub. Defenders, St. Louis, counsel on appeal only, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Stanley Robinson, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Charles D. Sindel, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   REINHARD, Judge.

Defendant appeals from his conviction for the offense of sodomy and jury-assessed punishment of two years imprisonment. § 563.230, RSMo.1969. Because of the nature of the case and the issues raised, it is necessary to state some of the loathsome details. The evidence was based primarily on the testimony of the victim, a 13-year-old girl. One evening she and her younger brother walked from their home to a nearby liquor store to purchase some popcorn. As the two were leaving the liquor store, they were met by defendant, a neighbor, and were invited to accompany him in his car to a local drugstore. At the drugstore, she and defendant remained in the latter’s automobile while the younger brother entered the store to purchase a soda. As they sat alone in his automobile, defendant asked the young girl to remove her underpants. She complied, and defendant “started sucking [her] in between [her] legs.” “He started sucking me in my crack”, she further testified. She testified she had been subjected to similar conduct on previous occasions while cleaning defendant’s house.

On appeal, defendant contends that the statute under which he was tried, § 563.230, is constitutionally infirm because it fails to notify persons that cunnilingus is a proscribed act. This section reads: “Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, with the sexual organs or with the mouth, shall be punished by imprisonment in the penitentiary not less than two years.” (Emphasis ours.) The current sodomy statute, now codified as § 563.230, RSMo.1969, has remained intact since 1911, at which time the old statute, itself a codification of the common law offense of sodomy, was amended with the addition of the words “with the sexual organs or with the mouth.” Following this amendment, our Supreme Court in State v. Wellman, 253 Mo. 302, 161 S.W. 795 (1913), indicated that the amended statute extended the crime of sodomy to acts committed with the mouth, including cunnilingus. More recently, it has been adjudicated that § 563.230 embraces cunnilingus. State v. Crawford, 478 S.W.2d 314 (Mo.1972); State v. Oswald, 306 S.W.2d 559 (Mo.1957). The constitutionality of the statute was thoroughly explored and upheld in State v. Crawford, supra.

Defendant argues that penetration is an essential element of the offense, and that the indictment is insufficient to charge a crime because it fails to allege penetration; that the trial court erred in overruling his motion for acquittal at the close of the case because no evidence of penetration was produced; and that the court erred in submitting a verdict directing instruction which did not require a finding of penetration. These points were not raised in defendant’s motion for a new trial and the latter two have not been properly preserved for appellate review. Rule 27.20(a). Rule 28.02, however, requires the court to consider allegations of error respecting the sufficiency of the information although not preserved for review.

The state contends that penetration is not a necessary element of the offense of cunnilingus. We agree. The reguirement of penetration is mentioned nowhere in the statue. At common law, however, some proof of penetration was required to support a sodomy conviction. The court in State v. Pettijohn, 541 S.W.2d 74, 78 (Mo.App.1976) noted: “While, like Missouri, nearly all States have expanded the common law felony of sodomy to include the acts of fellatio and cunnilingus, only a few have gone so far as to hold that something less than at least a slight penetration by either the mouth or the penis of a forbidden bodily cavity can amount to sodomy.” See also State v. Boyington, 544 S.W.2d 300, 303 (Mo.App.1976); State v. Dayton, 535 S.W.2d 469 (Mo.App.1976).

Pettijohn, and other Missouri cases which have held that penetration consummates the offense of sodomy, did not involve the act of cunnilingus. Indeed, the only Missouri case which directly confronted facts detailing the specific offense of cunnilingus was State v. Wellman, supra.

Despite suggestions in other cases to the contrary, see, e. g., State v. Pettijohn, supra, we do not interpret Wellman to require allegation and proof of penetration in the prosecution of the sodomy offense of cunnilingus. Cunnilingus is defined in Webster’s Third New International Dictionary as “stimulation of the vulva * * * with the lips or tongue.” Because of the anatomy of the mouth and the female genitalia, we believe that any contact between the mouth or its component parts and the vulva is sufficient to constitute the offense of cunnilingus.

The indictment stated that defendant “did wickedly, feloniously and against the order of nature commit the detestable and abominable crime against nature with [the victim], a female person, by placing his, LLOYD THOMAS THOMPSON’S mouth on the vagina of said [victim]; contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.” The allegations of the indictment substantially track the language of the sodomy statute, a fact which ordinarily renders an indictment sufficient. State v. Velas, 537 S.W.2d 881 (Mo.App.1976). The indictment fully and sufficiently advised defendant of the crime with which he was charged. Because of the nature of the offense, strict rules of pleading have not been followed in charging the offense of sodomy. As long as the act charged falls within the statutory definition and the indictment informs the accused of the charge against him, the details of the commission are generally unnecessary. State v. Dayton, supra.

Lastly, defendant contends the trial court erred in permitting the state to introduce evidence, in the form of rebuttal testimony, of defendant’s photographing nude children. In Paragraph 5 of defendant’s Motion for New Trial it is stated: “The court erred and abused its discretion when he permitted the state over the objection of defendant to permit witness Bill King to testify as to the nude pictures allegedly taken by defendant of victim * * * or of nude female children.” As presented in the motion for a new trial, the contention is so lacking in particularity and detail that it preserves nothing for appellate review. Rule 27.20(a). The motion does not contain specific reasons as to why defendant claims the pictures should not have been admitted in evidence. State v. Whitaker, 312 S.W.2d 34 (Mo.1958).

We hereby affirm the judgment of the trial court.

STEWART, P. J., and DOWD, J., concur.


author: GUNN, Presiding Judge.

text:
    Melvin Leroy TYLER, Appellant, v. STATE of Missouri, Respondent.
    No. 38930.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 5, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 17, 1978.
    Application to Transfer Denied Jan. 8, 1979.

      Robert C. Babione, Public Defender, Terry W. Wiese, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for respondent.
   GUNN, Presiding Judge.

Movant was convicted of assault with intent to kill with malice aforethought and was sentenced to 25 years imprisonment. The conviction was affirmed in State v. Tyler, 454 S.W.2d 564 (Mo.1970). A Rule 27.26 motion to set aside the conviction was denied after hearing and the denial affirmed in Tyler v. State, 501 S.W.2d 189 (Mo.App.1973).

A subsequent Rule 27.26 application was filed charging that movant’s 25 year sentence had been based on four prior convictions, one of which was ultimately overturned. The trial court granted movant’s 27.26 motion, finding that one of the prior convictions which had been taken into consideration in sentencing movant had been set aside. The trial court thereupon resen-tenced movant to 20 years imprisonment on the conviction of assault with intent to kill. Movant appeals the trial court’s action in sustaining the Rule 27.26 motion and resen-tencing him. Movant contends on this appeal: (1) that the prosecutor made improper argument to the jury during the trial resulting in his conviction; (2) that the trial court in this 27.26 proceeding failed to provide him opportunity to present evidence of changed circumstances regarding his good character at the time of the resentencing. Each contention is destitute of merit.

The matter regarding the prosecutor’s argument relates to purported trial error, not subject to Rule 27.26 procedures, particularly not on successive motions. Rule 27.26(b) and (d). See Williams v. State, 567 S.W.2d 370 (Mo.App.1978).

As to his second point, movant requested that his original sentence be vacated; it was, and he was resentenced. He received all the relief he requested and may not now complain. He now argues, however, that he was not permitted to explain to the trial court at the time of resentenc-ing the extent to which he had been rehabilitated during his period of incarceration, including examples of self-improvement. All these matters were listed in fulsome detail in movant’s 27.26 motion, which we have read. We must assume that the trial court also read movant’s motion with its contents, for the motion was granted. Movant claims error because the trial court did not allow him to vocalize what was written. We find no error in such refusal.

Our review of the record reveals the trial court’s judgment not to be clearly erroneous. No error of law appears, and a full opinion would have no precedential value. Lang v. State, 571 S.W.2d 449 (Mo.App.St.L.Dist., 1978).

Judgment affirmed. Rule 84.16(b).

KELLY and REINHARD, JJ., concur.