Amsden v. State

• Decision Date: 21 December 2018
• Docket Number: No. SD 35341,SD 35341
• Citation: 567 S.W.3d 241
• Parties: Christopher P. AMSDEN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

567 S.W.3d 241

Christopher P. AMSDEN, Movant-Appellant,
v.
STATE of Missouri, Respondent-Respondent.

No. SD 35341

Missouri Court of Appeals, Southern District, Division Two.

Filed: December 21, 2018

Attorney for Appellant: Ellen H. Flottman of Columbia, MO.

Attorney for Respondent: Joshua D. Hawley, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., of Jefferson City, MO.

JEFFREY W. BATES, J.

In March 2015, Christopher Amsden (Movant) was charged by information with violating § 570.030 by stealing a front-end loader worth at least $25,000.¹ Movant pled guilty to that offense. In March 2016, he received a 10-year sentence. On August 23,

567 S.W.3d 243

2016, our Supreme Court decided State v. Bazell , 497 S.W.3d 263 (Mo. banc 2016), which held that the plain language of § 570.030 did not allow the offense of stealing to be enhanced to a felony. Id . at 266-67.

Movant filed a timely pro se motion requesting post-conviction relief, and appointed counsel filed a timely amended motion.² The amended motion alleged that Movant’s sentence exceeded the maximum allowed by law because his stealing conviction could only be a misdemeanor pursuant to Bazell .

On February 10, 2017, the motion court held a hearing on the amended motion. The court and the parties agreed that the sole issue before the court was whether Bazell applied retroactively. The court listened to arguments of counsel and took the case under advisement.

On July 13, 2017, the motion court entered an order, with supporting findings of fact and conclusions of law, granting Movant relief. The court concluded that, pursuant to the holding in Bazell , Movant’s sentence exceeded the maximum allowed by law. That same day, the State filed a motion to reconsider. The motion argued that Bazell did not apply retroactively and that "all sentences previously imposed must be left undisturbed." On July 18, 2017, the State filed an additional motion to reconsider which apprised the motion court that "four appellate cases have been argued and submitted to the Supreme Court on the very issue of retroactive application of Bazell. " The State asked the court to stay its decision until the Supreme Court decided the issue. On July 25, 2017, the court held a hearing on the State’s motions and made the following docket entry:

Movant appears by his attorney, Karl William Hinkebein. State appears by Stoddard County Prosecuting Attorney, Russell Oliver. Court takes up for hearing State’s Motion to Reconsider the judgment of the Court entered on July 13, 2017. After hearing the argument of counsel and suggestions with regard to relevant caselaw, the Court took the State’s motion under advisement. Though a "Motion to Reconsider" is not recognized by Missouri Rules, the State’s Motion for reconsideration asked that the Judgment be vacated. The Court therefore disregards the State’s denomination of its after-trial motion, and deems it to be a Rule 75.01 motion to vacate. The previous judgment of the Court shall not be final until the disposition of the State’s motion. So Ordered. MMP

On October 5, 2017, our Supreme Court decided in State ex rel. Windeknecht v. Mesmer , 530 S.W.3d 500 (Mo. banc 2017), that "the Bazell holding only applies forward, except those cases pending on direct appeal." Id . at 503. On October 10, 2017, Movant’s attorney filed a memorandum in support of the Rule 24.035 claim. The memorandum argued that Windeknecht only applied to habeas corpus petitions in which the Bazell claim had been procedurally defaulted. Based on that argument, Movant urged the motion court to "apply Rule 24.035 and impose a sentence authorized by law."

On October 20, 2017, the motion court entered an order denying relief to Movant based on Windeknecht , restating that "the Bazell holding only applies forward, except in those cases pending on direct appeal."

567 S.W.3d 244

On November 3, 2017, Movant’s attorney filed a motion to enforce the order entered on July 13, 2017, and to set aside the order entered on October 20^th. According to Movant, the motion court’s docket entry on July 25^th had "no practical effect" on the case, and the October 20^th decision was entered too late to be effective. This appeal followed. Movant presents two points for decision.

Point 1

In Movant’s first point, he contends the motion court lacked the authority to enter the October 20^th order denying relief. The issue of the court’s authority to enter that order presents a question of law, which we review de novo. Sterling v. Long , 524 S.W.3d 62, 64 (Mo. App. 2017) ; Ramirez v. Missouri Dep't of Soc. Servs., Children’s Div. , 501 S.W.3d 473, 479 (Mo. App. 2016).

Movant’s contention is based upon two premises. The first premise is that the motion court’s July 25^th ruling on the State’s motion to reconsider had "no practical effect" on the case. The second premise is that the motion court lacked the authority as of October 20^th to enter an order denying relief because more than 90 days had elapsed since the July 25^th ruling. Movant’s argument fails because both premises are incorrect.

Here, the motion court and the parties acknowledged at the February 2017 hearing that the decision on whether Bazell applied retroactively would control the ruling on Movant’s amended motion. When the motion court initially granted relief on July 13, 2017, that issue had not been decided. The State immediately filed its first motion to reconsider, which explained why Bazell did not decide the issue of retroactivity. A few days later, the State filed a second motion to reconsider that apprised the motion court that...