Marks v. State, 082719 MOCAE, ED106973

Docket Nº:ED106973
Opinion Judge:Robert G. Dowd, Jr., Judge.
Party Name:WESLEY E. MARKS, Appellant, v. STATE OF MISSOURI, Respondent.
Judge Panel:Robert M Clayton III, P.J., and Roy L. Richter, J., concur.
Case Date:August 27, 2019
Court:Court of Appeals of Missouri
 
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WESLEY E. MARKS, Appellant,

v.

STATE OF MISSOURI, Respondent.

No. ED106973

Court of Appeals of Missouri, Eastern District, First Division

August 27, 2019

Appeal from the Circuit Court of the City of St. Louis Hon. Steven R. Ohmer

Robert G. Dowd, Jr., Judge.

Wesley Marks ("Movant") appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. We remand for dismissal.

Movant pled guilty to robbery in the first degree and armed criminal action ("ACA") on April 23, 2014, after his jury trial ended in a mistrial. He was sentenced to ten years imprisonment on the robbery and to three years imprisonment on the ACA, to be served concurrently. Execution of the ten-year sentence was suspended, and Movant was placed on five years of probation for the robbery conviction. The court also ordered "[j]ail time credit allowed." On April 28, 2014, he was delivered to the Department of Corrections ("DOC") to serve the three-year sentence for the ACA conviction. Movant was released in December of 2015, but remained on probation for the robbery conviction. That probation was revoked in April of 2016, and he was delivered to the DOC on May 4, 2016 to begin serving his ten-year sentence on the robbery. Movant did not file a direct appeal.

On August 25, 2016, Movant filed a pro se motion seeking to vacate both the robbery and the ACA convictions. Therein, he stated that he was "trying to get my jail time and my probation credit" for all the time he was "locked up for either the ACA or the robbery" or on probation. Counsel was appointed and filed an amended motion asserting that plea counsel was ineffective for assuring Movant he would receive credit for all the time he served on the ACA if his probation on the robbery was ever revoked and the ten-year sentence executed. Movant alleged that the DOC refused to give him the credit for time served the sentencing court had ordered. Movant alleged that had he known he would not get that credit for the time he served in prison on the ACA, then he would not have pled guilty. Movant sought to have his entire sentence on both convictions vacated.

The motion court found that the pro se and amended...

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