Hoover v. State, 17186
| Decision Date | 19 November 1991 |
| Docket Number | No. 17186,17186 |
| Parties | Michael A. HOOVER, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Rosalynn Koch, Columbia, for movant-appellant.
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
Movant Michael Hoover appeals from a denial, without evidentiary hearing, of his Rule 24.035 1 motion seeking to vacate a judgment and sentence on a plea of guilty to a charge of sexual abuse in the first degree. Movant was sentenced to five years in the Department of Corrections, but execution of the sentence was suspended and he was placed on probation. Later probation was revoked and the sentence was ordered to be executed.
Movant's first point is that his original motion, filed pro se, was timely, and the trial court erred in ruling otherwise. "The motion shall be filed within ninety days after the movant is delivered to the custody of the department of corrections." Rule 24.035(b).
In Thomas v. State, 808 S.W.2d 364, 365 (Mo. banc 1991), the court held that the 90-day period begins to run "when a person under sentence is delivered, physically, into the custody of the Department of Corrections." In so ruling, the court rejected the state's argument that the date of sentencing, rather than the date of delivery to the Department of Corrections, was the significant date for measuring the 90-day period.
In the case at bar, as in Thomas, movant was initially placed on probation and he was not delivered to the Department of Corrections until his probation was revoked following a subsequent hearing. Movant's pro se motion was filed within the 90-day period after his delivery into the custody of the Department of Corrections, and the trial court did err in ruling otherwise. In fairness to the trial court, it should be stated that there was case law, antedating Thomas, which would have sustained the trial court's ruling of untimeliness.
The trial court did not base its denial solely on the issue of timeliness. The trial court appointed counsel, who filed a timely amended motion. The trial court considered both the pro se motion and the amended motion on their merits and denied them.
Movant's second point is that he was entitled to relief on one ground alleged in his pro se motion and re-alleged in the amended motion, and that the trial court erred in ruling otherwise. Movant asserts that the state reneged on a plea agreement. Movant claims that the plea agreement was that movant "would be sentenced to two years."
Appellate review of the trial court's ruling on a Rule 24.035 motion is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous. Rule 24.035(j).
The trial court reviewed the transcript of the plea hearing and held, correctly, that it refuted movant's contention that the plea agreement contemplated a two-year sentence. The plea agreement reads as follows: ...
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Wesbecher v. State, No. 63217
...17, 1991. Therefore, Defendant's 24.035 motion for those counts is timely, because it was filed within the ninety days. Hoover v. State, 819 S.W.2d 97, 97 (Mo.App.1991). The motion court clearly erred when it denied Defendant's motion as to Counts I, II, III, VI, and VII. Section 559.036.6,......
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Johnston v. State, 17864
...Id. at 365. Also see Clamme v. State, 814 S.W.2d 334 (Mo.App.1991); McCampbell v. State, 816 S.W.2d 681 (Mo.App.1991); Hoover v. State, 819 S.W.2d 97 (Mo.App.1991); Palermo v. State, 823 S.W.2d 151 However, the action of the motion court is to be affirmed if correct, even though entered for......