permitting defendant to challenge on appeal the constitutionality of the statute classifying marijuana as a schedule I substance, even though he pleaded guilty to the charge, because “jurisdictional defects and defenses are not waived by entering a guilty plea.”
How later courts described this case
- permitting defendant to challenge on appeal the constitutionality of the statute classifying marijuana as a schedule I substance, even though he pleaded guilty to the charge, because “jurisdictional defects and defenses are not waived by entering a guilty plea.”
- stating "that jurisdictional defects and defenses are not waived by entering a guilty plea”
- “As to alcohol and tobacco, the legislature’s decision to prohibit some harmful substances does not thereby constitutionally compel it to regulate or prohibit all harmful substances.”
- jurisdictional defects and defenses are not waived by entering a guilty plea
Written by the judges who cited it.
The opinion
DONNELLY, Judge,
concurring in result.
It would appear that the principal opinion approves a rule that a “ ‘punishment which is within the statutory limits for the offense, * * * is not cruel and unusual because of its duration unless so disproportionate to the offense committed so as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.’ ”
The italicized portion of the above statement appears in State v. Brownridge, 353 S.W.2d 715, 718 (Mo.1963) and was cited with approval in State v. Agee, 474 S.W.2d 817, 821, 822 (Mo.1971). In Brownridge, Division No. 1 of this Court did not note the fact that in State v. Wolfe, 343 S.W.2d 10, 16 (Mo. banc 1961), this Court en banc had ruled that “ ‘ * * * when the punishment assessed is within the range prescribed by statute, it cannot be adjudged to be excessive by an appellate court. * *.’ ”
In State v. Rizor, 353 Mo. 368 , 182 S.W.2d 525, 529 (1944), the view was expressed that this Court has “often treated it as a cogni *28 zable question on appeal if there was evidence of passion and prejudice” on the part of the jury in assessing punishment.
I concede, as indicated in Rizor , that an argument can be made for retreating from the rigidity of the Wolfe rule. I doubt that we should abrogate the Wolfe rule. I am certain we should not do so by indirection.
I concur only in the result.