State v. Madewell, s. 19829

• Decision Date: 14 August 1996
• Docket Number: 20703,Nos. 19829,s. 19829
• Citation: 928 S.W.2d 381
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Terry Lee MADEWELL, Defendant-Appellant. and Terry Lee MADEWELL, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 381

928 S.W.2d 381

STATE of Missouri, Plaintiff-Respondent, v.Terry Lee MADEWELL, Defendant-Appellant. andTerry Lee MADEWELL, Appellant, v.STATE of Missouri, Respondent.

Nos. 19829, 20703.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 14, 1996.

Rebecca L. Kurz, Asst. Appellate Defender, Kansas City, for appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Becky Owenson Kilpatrick, Asst. Atty. Gen., Jefferson City, for respondent.

PARRISH, Judge.

Terry Lee Madewell(defendant) appeals the sentence he received for the class D felony of conspiracy to commit distribution of methamphetamine and marijuana.He asserts the trial court improperly sentenced him to an enhanced punishment, pursuant to § 558.016.6, ¹ as a persistent offender after his case was remanded for resentencing.He contends that because his original punishment was no greater than that authorized by § 558.011.1, the imposition of an enhanced punishment upon resentencing was error.

Defendant also filed a motion for post-conviction relief pursuant to Rule 29.15 by which he sought resentencing within the range of punishment prescribed by § 558.011.1 for class D felonies.He appeals the denial of that motion.That appeal was consolidated with his direct appeal pursuant to Rule 29.15(l ) as it existed on the date the motion was filed.²This court affirms defendant's sentence in his criminal case and the order denying his Rule 29.15 motion.

Defendant's conviction was affirmed in State v. Madewell, 846 S.W.2d 208(Mo.App.1993).Later, he filed a motion to recall the mandate.It was granted as to the sentence.

The original sentence was for a class B felony.Defendant's case was remanded with instructions that he be resentenced in accordance with the range of punishment prescribed for a class D felony committed by a prior and persistent offender.He was resentenced to imprisonment for a term of 7 years.It is this sentence which defendant appeals.

The state contends, however, that this court does not have jurisdiction to consider defendant's direct appeal.Its contention is based on the following chronology.

July 29, 1994         Defendant resentenced to confinement for a term of 7
                                        years following remand to the trial court
                August 25, 1994       Affidavit of indigency filed in trial court
                September 1, 1994     Trial court grants defendant's request to proceed in
                                        forma pauperis
                September 1, 1994     Defendant's notice of appeal filed
                September 27, 1994    Appeal dismissed -- notice of appeal not timely filed
                November 4, 1994      Court of Appeals granted defendant leave to file notice
                                        of appeal within 10 days from date circuit clerk
                                        received notice of its order
                November 7, 1994      Court of Appeals order received by trial court
                November 14, 1994     Notice of appeal filed
                November 16, 1994     Trial court notified that Court of Appeals would not
                                        accept copy of November 14 notice of appeal because no
                                        docket fee or in forma pauperis order was submitted
                                        with it
                November 28, 1994     Affidavit of indigency filed in trial court
                December 6, 1994      Trial court grants defendant's request to proceed in
                                        forma pauperis
                December 6, 1994      Notice of appeal filed
                

The state's suggestion that this court lacks jurisdiction to consider the direct appeal is based on the November 4, 1994, order granting defendant leave to file a late notice of appeal within 10 days after the clerk of the trial court received notice of the order.SeeRule 30.03.Notice of the order was received by the clerk of the trial courtNovember 7, 1994.The state argues that because defendant did not tender an affidavit of indigency until more than 10 days thereafter, the time frame in which defendant was permitted to file his late appeal was not met.

Defendant, in response to the state's challenge to the timeliness of his appeal, points to his affidavit of indigency filed August 25, 1994, and the trial court's September 1, 1994, order permitting him to proceed in forma pauperis.He contends that since his status as a poor person was determined before he tendered his November 14 notice of appeal for filing, the trial court properly accepted the notice of appeal; that the prior leave of court permitting him to appeal as an indigent person sufficed for purposes of Rule 30.01(d).This court agrees.

It is appropriate for an appellate court to defer to a trial court's determination on the question of an appellant's indigency.³Nitcher v. Brown, 775 S.W.2d 330, 334(Mo.App.1989).Once a determination of indigency has been made for purposes of appeal, it need not be revisited absent a manifestation of some change of an appellant's financial circumstances.To require otherwise would be a duplicitous exercise of form over substance.⁴Defendant's direct appeal is properly before this court for review.

Defendant presents one allegation of error in both his direct appeal and the appeal of the order dismissing his Rule 29.15 motion.It is directed to the length of the sentence received when he was resentenced.He contends the trial court erred in sentencing him to a greater punishment than could have been imposed on a person who was not a persistent offender, and that the motion court erred in denying his Rule 29.15motion by which he sought to vacate that sentence.

Defendant was charged as and found to be a persistent offender.He was originally sentenced to imprisonment for a term of 12 years for having committed a class B felony.The maximum punishment for a class B felony committed by a persistent offender is "a term of years not to exceed thirty years."§ 558.016.6(2).

After defendant's case was remanded for resentencing for a class D felony, he was sentenced to imprisonment for a term of 7 years.The maximum punishment for a class D felony committed by a persistent offender is "a term of years not to exceed ten years."§ 558.016.6(4).

If defendant had not been a persistent offender, the applicable ranges of punishment for class B and class D felonies would have been, respectively, "a term of years not less than five years and not to exceed fifteen years" and "a term of years not to exceed five years."§ 558.011.1(2) and (4).

Defendant contends that because the sentence he originally received, based on the erroneous belief that he had committed a class B felony, was within the range of punishment for class B felonies committed by persons who are not persistent offenders, the sentence he received when he was resentenced for committing a class D felony should not have exceeded the maximum punishment for a class D felony...