Holloway v. State, WD

• Decision Date: 31 January 1989
• Docket Number: No. WD,WD
• Citation: 764 S.W.2d 163
• Parties: Timothy HOLLOWAY, Appellant, v. STATE of Missouri, Respondent. 40928.
• Court: Missouri Court of Appeals

Page 163

764 S.W.2d 163

Timothy HOLLOWAY, Appellant, v. STATE of Missouri, Respondent.

No. WD 40928.

Missouri Court of Appeals,

Western District.

Jan. 31, 1989.

Gary William Smith, Sedalia, for appellant.

William L. Webster, Atty. Gen., William J. Swift, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and CLARK and NUGENT, JJ.

NUGENT, Judge.

Movant Timothy Holloway appeals the denial, without an evidentiary hearing, of his Rule 24.035 motion for post-conviction relief. He claims that the trial court erred in overruling his motion without issuing findings of fact and conclusions of law. He is correct, and for that reason and the additional reason that the trial court erroneously denied movant a requested evidentiary hearing we must reverse and remand.

Movant pled guilty to two counts of second degree burglary, one count of stealing, and one count of possessing burglar's tools. The trial court found movant to be a prior and persistent offender and sentenced him to ten years' imprisonment on the possession count and fifteen years on each of the other three counts. All of the sentences were ordered to be served concurrently.

Following his guilty plea, movant filed a pro se motion to vacate his sentence under Missouri Supreme Court Rule 24.035. The motion alleged ineffective assistance of counsel in that at the time of his plea his lawyer failed to inform him that he could plead guilty to the principal offense charged and still challenge the persistent offender charge by contesting the constitutional validity of the two prior convictions upon which his status as a persistent offender depended. He alleged in his motion that he could have proven that the prior convictions were invalid for want of effective counsel but his attorney did not tell him of his right to do so.

The court appointed new counsel who reviewed the court file and movant's guilty plea transcript. Based on that review, counsel filed an affidavit stating that he "discovered nothing to indicate [his] client would be entitled to relief under Rule 24.035, and was aware of no basis for making an amendment to the pro se Motion for relief." Nevertheless, counsel requested an evidentiary hearing based on the issues raised in movant's pro se motion. The trial court dismissed the motion without an evidentiary hearing and without issuing findings of fact or conclusions of law. Its order said, "The court determines that, an amended motion having not been filed, a hearing should not be held. The Movant's 24.035 Motion is hereby overruled and denied." Nothing in the record or the order makes clear whether the court decided to overrule and deny movant Holloway's motion because he had not amended the motion or for some other reason.

Mr. Holloway contends that the trial court erred in not including findings of fact or conclusions of law in its decision. He asserts that the court's action violates Rule 24.035(i), which requires that a court hearing a Rule 24.035 motion "shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held, within thirty days of the submission of the case."

In this requirement Rule 24.035 is identical to its predecessor, Rule 27.26. Therefore, we look to the cases interpreting Rule 27.26 for guidance. Under Rule 27.26, the courts have repeatedly held that a failure to issue findings of fact and conclusions of law mandates reversal and remand. Fields v. State, 572 S.W.2d 477 (Mo.1978) (en banc); Gill v. State, 712 S.W.2d 732, 733 (Mo.App.1986); Tammons v. State, 686 S.W.2d 552, 553 (Mo.App.1985). In Fields at 483 the court stated: "A mere recital or statement that the motion, files and records conclusively show that movant is entitled to no relief will not constitute compliance with Rule 27.26(i). Nor will findings and conclusions be supplied by implication from the trial court's ruling. Specific findings and conclusions are contemplated and required."

Despite this clear and unambiguous directive from the Supreme Court, the state argues that we need not reverse and remand in this case. In support of its claim, the state cites an Eastern District case, Guyton v. State, 752 S.W.2d 390, 392 (Mo.App.1988). There, as here, the trial court denied a motion for post-conviction relief without an evidentiary hearing and without issuing findings of fact or conclusions of law. Nevertheless, the Eastern District affirmed the judgment of the hearing court, holding that "where the issue ... is one of law and not of fact, findings of fact are not required. Williams v. State, 744 S.W.2d 814, 817 (Mo.App.1987). There is no need to remand for findings and conclusions if the record allows this court to determine the correctness of the motion court's action." 752 S.W.2d at 392.

The Guyton decision, which recognizes an exception to Fields, echoes an earlier decision by the same judge in Williams v. State, 744 S.W.2d 814, 817 (Mo.App.1987), which in turn relied upon Newman v. State, 703 S.W.2d 71, 72 (Mo.App.1985). In Newman the Southern District affirmed a dismissal of a Rule 27.26 motion because it was a successive motion in which movant had failed to show any reason that his alleged grounds for relief could not have been raised in his earlier motion. Newman looked to the specific requirements for stating a valid successive motion under Rule 27.26. It has little or no precedential value to a court...