State v. Cook, s. 18457

• Citation: 945 S.W.2d 90
• Decision Date: 27 May 1997
• Docket Number: Nos. 18457,21220,s. 18457
• Court: Court of Appeal of Missouri (US)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Melvin COOK, Defendant-Appellant. and Melvin COOK, Appellant, v. STATE of Missouri, Respondent.

Page 90

945 S.W.2d 90

STATE of Missouri, Plaintiff-Respondent, v. Melvin COOK, Defendant-Appellant. and Melvin COOK, Appellant, v. STATE of Missouri, Respondent.

Nos. 18457, 21220.

Missouri Court of Appeals,

Southern District,

Division Two.

May 27, 1997.

Thomas D. Carver, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jill C. LaHue, Asst. Atty. Gen., Jefferson City, for respondent.

PARRISH, Judge.

Melvin Cook (defendant) was charged with two counts of distributing marijuana, a controlled substance, a class C felony. § 195.211. ¹ One of the offenses was alleged to have occurred March 18, 1991 (Count I). The other was alleged to have occurred April 5, 1991 (Count II). Both counts charged defendant as a persistent offender. § 558.016.3.

Following a jury trial defendant was found not guilty as to Count I and guilty as to Count II. He was sentenced in Count II as a persistent offender.

Defendant thereafter filed a motion for post-conviction relief as permitted by Rule 29.15. The motion was denied without an evidentiary hearing.

Defendant appeals the judgment of conviction in No. 18457 and the order dismissing his Rule 29.15 motion in No. 21220. However, he asserts no claim of trial court error with respect to the direct appeal of the criminal case. Failure to raise an assignment of error directed to the appeal of the judgment of conviction constitutes an abandonment of that appeal. State v. Gongora, 866 S.W.2d 172, 174 (Mo.App.1993). No. 18457 is dismissed.

For the reasons that follow, No. 21220 is reversed and remanded with directions.

The trial court made no findings of fact and conclusions of law in disposing of defendant's Rule 29.15 motion. Its disposition was by docket entry granting the state's motion to dismiss the Rule 29.15 motion without evidentiary hearing.

Rule 29.15(i), as it existed the date defendant's Rule 29.15 motion was filed, provides, "The court 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." See Rule 29.15(m). ² As explained by the Western District of this court:

Rule 29.15(i) requires the court to issue findings of fact and conclusions of law on all issues presented whether or not a hearing on the motion is held. In Charles v. State, 792 S.W.2d 59, 60 (Mo.App.1990), this court held that appellate courts will not supply necessary findings of fact by implication. This court's review of the denial of the motion under Rule 29.15 is limited to a determination of whether or not the findings of fact and conclusions of law of the trial court are clearly erroneous. Rule 29.15(j). Without findings of fact and conclusions of law entered by the trial court, there is nothing for this court to review.

State v. Rouse, 866 S.W.2d 179, 180 (Mo.App.1993). See also State v. Sappington, 873 S.W.2d 618, 626-27 (Mo.App.1994); Rogers v. State, 810 S.W.2d 125 (Mo.App.1991).

No. 18457 is dismissed. No. 21220 is reversed and remanded for the motion court to issue findings of fact and conclusions of law as required by Rule 29.15(i), Missouri Rules of Court 1993.

MONTGOMERY, C.J., and SHRUM, J., concur.

1 References to statutes are to RSMo Supp.1990.

2 Sentence in the criminal case was pronounced October 16, 1992. Defendant's Rule 29.15 motion was filed May 13,...