The attorney for Donald Nash, convicted of the March 1982 murder of Judy Spencer, has filed an appeal in the Missouri Supreme Court, saying Nash was charged, tried and convicted of an uncharged crime in violation of the U.S. Constitution, according to court records.
Frank Carlson filed the appeal notice and jurisdictional statements Jan. 27. He says the Missouri General Assembly had repealed a law used to charge Nash with and no law was ever put in its place._
“We are challenging the validity of a state statute in which Mr. Nash was charged and tried,” Carlson said from his Union law office. “This was filed with the Missouri Supreme Court because it deals with the validity of a state statute.”_
Carlson said if the Missouri Supreme Court denies his request and does not hear the case, then the proper appeals notices would be filed with state appeals courts in Springfield.
No date has been set for the supreme court to hear the case.
Nash was charged in March 2008 with the 1982 death of Spencer based on DNA evidence. The case was transferred to Crawford County in 2009 and a trial was October 26-29 in Rolla. A Crawford County jury found the Beaufort resident guilty of capital murder. In December 2009, Judge Douglas E. Long Jr. sentenced Nash to life in prison without the possibility of parole for 50 years.
According to Carlson’s petition filed with the Supreme Court:
–The 1977 capital murder statute under which Nash had been charged, tried and convicted under, had been repealed by the Missouri General Assembly in 1983 and in 1984 the Missouri General Assembly changed the effective date of that enactment to Oct. 1, 1984.
–The Missouri General Assembly specifically omitted and failed to reenact the 1977 statute or any statute for homicides committed before Oct. 1, 1984 and the statute under which Nash was charged, tried and convicted thus remains repealed and has never been revived or re-enacted as required by the Missouri Constitution.
–The statute of conviction is invalid, in that it was repealed in 1983 and never revived. To the extent that efforts to revive the repealed 1977 version is also invalid in that it violates the Missouri Constitution._
–The current murder statutes are only applicable to crimes occurring after October 1, 1984. _
–Because the statute under which Nash was charged had been repealed and never constitutionally revived or reenacted, the information failed to charge a crime. Accordingly, Nash was tried and convicted for uncharged crimes, conduct wrongs or acts in violation of the U.S. Constitution. The trial court was without jurisdiction over the alleged offense.