
    James E. MITCHELL, Appellant, v. STATE of Missouri, Respondent.
    No. 41272.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 25, 1980.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 19, 1980.
    L. J. Kutten, Clayton, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George R. Westfall, Pros. Atty., Clayton, for respondent.
   CLEMENS, Senior Judge.

The trial court granted Movant James E. Mitchell (hereafter “defendant”) an eviden-tiary hearing on his amended Rule 27.26 motion. Defendant now appeals from the denial thereof. Newly appointed counsel now represents defendant.

In 1974 defendant pled guilty to armed robbery and was sentenced to imprisonment for 25 years. That sentence was suspended and the court placed defendant on probation for five years. Then in 1977 the court revoked probation and ordered defendant imprisoned in accordance with the originally suspended sentence.

Defendant then filed his Rule 27.26 motion and upon denial thereof he has appealed, raising two points. First, he contends that when he originally pled guilty he relied on his counsel’s prior statement he “would do no more than five years”. Second, defendant contends his counsel at the revocation hearing was ineffective by failing to ask the court to grant credit on the 25-year sentence for the forty-two months defendant had been on probation. These in turn.

On the first point the record shows a course of plea bargaining. Before the guilty plea defense counsel conferred with the court and reported to defendant that the court would either impose a five-year sentence, or if defendant wanted probation the sentence would be 25 years imprisonment. Defendant chose the latter and the court then sentenced him to 25 years imprisonment but suspended the sentence and placed defendant on probation for five years. Forty-two months later, following a hearing, defendant’s probation was revoked.

At the Rule 27.26 hearing defendant testified that before pleading guilty his counsel had told him he would get five years probation and would get no more than that “no matter what happened”.

At the Rule 27.26 hearing defense counsel testified about his pre-plea conversations with the defendant concerning the sentence to be imposed. Defendant now relies on the following:

Question: Let me ask you this: Did you tell him the judge’s sentence was just a sham and he would only get five years no matter what period of time the judge sentenced him to? During the probation — was a presentence investigation done?
Answer: Yes.

Standing alone, the first part of that double-barrelled question would support defendant’s contention if counsel’s “yes” referred to a maximum five-year sentence. But it would not do so if the “yes” referred to the latter part of the question concerning a pre-sentence investigation. For clarification, we look to further questions put to counsel about what he had told defendant of the sentence to be imposed. He had told defendant if he was to be on five years probation it would be from a 25-year sentence. He also told defendant if he violated probation “he would do the 25 years”. Thereupon, defendant told counsel he “decided to take the 25 years with probation”.

We conclude defendant has not sustained his burden of showing his counsel was ineffective by telling him a guilty plea would result in no more than five years in prison. We deny defendant’s first point.

By defendant’s second point he contends his counsel was ineffective at the parole revocation hearing by failing to ask the court to give defendant credit on the 25-year sentence for the prior forty-two months he had been on judicial probation. That is permissible in the court’s discretion under Section 549.101, RSMo 1969. At the Rule 27.26 hearing defense counsel frankly acknowledged he had been unaware of the cited statute when the court revoked probation.

Although we affirm the judgment sentencing defendant to 25 years in prison, we hereby grant defendant leave, if he so desires, to move the circuit court, in its discretion, to amend its judgment by granting defendant in accordance with the cited statute credit against the 25-year sentence for the time defendant was on probation. Since Judge Hoester presided at each step of the proceedings, we do not order an evi-dentiary hearing on defendant’s said motion, if filed.

Judgment affirmed.

DOWD, P. J., and REINHARD and CRIST, JJ., concur.  