James Burl Johnson v. State Missouri

Appellant, prisoner-petitioner, appeals from a judgment on petitioner's motion under amended rule 27.26, V.A.M.R., wherein
appellant's prayer that judgment and sentence entered in 1954 be vacated and set aside was granted, but the further relief
of absolute discharge or, in the alternative, a new trial was denied. The trial court after setting aside the 1954 judgment
and sentence ordered that appellant be returned to the trial court for further proceedings in which appellant would be allowed
to file a motion for new trial as to the 1954 conviction and, if overruled, a new sentence and judgment would be imposed and
appellant could take an appeal. The state concedes that appellant has been unconstitutionally deprived of his right to appeal
and is entitled to take an appeal and agrees with the order and judgment of the trial court. The relief appellant seeks here
is an absolute discharge or a new trial on the 1954 charge of rape, and with this the state disagrees at this stage of the
proceedings. In view of the state's concession that defendant has been unconstitutionally denied his right of appeal, and that the order
of the trial court setting aside the judgment and sentence to allow appellant to file a motion for new trial and, if necessary,
appeal, was proper, there is no need for a lengthy statement of facts. Briefly the following occurred.