Taylor v. State
| Decision Date | 22 August 2000 |
| Citation | 25 S.W.3d 632 |
| Parties | (Mo.App. E.D. 2000) . Steven Taylor, Movant/Appellant, v. State of Missouri, Respondent/Respondent. Case Number: ED77516 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of the City of St. Louis, Hon. Joan M. Burger
Counsel for Appellant: Douglas R. Hoff
Counsel for Respondent: John Munson Morris III and Breck K. Burgess
Opinion Summary: Steven Taylor appeals from the judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing.
AFFIRMED.
Division Five holds: Taylor's sentence was imposed but not executed prior to an amendment to the statute under which he was convicted. Thus, the amendment did not occur "prior to original sentencing," and he was not entitled to resentencing under Section 1.160(2).
Steven Taylor, movant, appeals from the judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We affirm.
On May 6, 1997, movant pleaded guilty to the Class C felony of stealing over $150 in violation of Section 570.030.3(1), RSMo (Cum. Supp. 1996), for stealing two gas blowers and two tool sets with a value over $150 from Builders Square. On June 27, 1997, the trial court sentenced movant as a prior and persistent offender to ten years' imprisonment. However, the court suspended execution of the sentence and placed movant on probation for five years. In 1998, while movant was on probation, the legislature amended Section 570.030.3(1) so that the new threshold for felony stealing under that section was a value over $750. Stealing property valued less than $750, if the property was not taken from the person of a victim or was not one of the enumerated classes of property under other sections of the statute, became a class A misdemeanor. Section 570.030.7, RSMo (Cum. Supp. 1999). On February 5, 1999, the trial court revoked movant's probation and executed his sentence.
Movant filed timely pro se and amended motions seeking post-conviction relief under Rule 24.035, arguing that he was entitled to have his sentence and judgment corrected under Section 1.160, RSMo (1994), to reflect a misdemeanor conviction rather than a felony conviction. The motion court denied the motion without an evidentiary hearing. It found movant was not entitled to the benefit of the statutory amendment because movant had been sentenced in 1997, prior to the change in the law. Movant appeals.
In his sole point on appeal, movant contends that the trial court erred in denying an evidentiary hearing on his claim that Section 1.160(2) requires that his judgment and sentence be corrected because his ten-year sentence exceeds the maximum allowed by law at the time his sentence was executed. Movant contends that the suspended execution of sentence was conditional and did not amount to a final sentence and judgment. We disagree.
Section 1.160(2) provides "That if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense prior to original sentencing, the penalty or punishment shall be assessed according to the amendatory law." We hold that when movant's sentence was imposed but not executed prior to the amendment to Section 570.030.3(1) the amendment did not occur "prior to original sentencing" and movant was not entitled to resentencing under Section 1.160(2).
When the trial court imposed sentence on June 27, 1997, the judgment against movant became final. State v. Nelson, 9 S.W.3d 687, 688 (Mo. App. 1999). When a court suspends the execution of sentence, only the act of executing the sentence has been suspended; a criminal conviction has been entered and the sentence has been assessed. Id. (citing Barnes v. State, 826 S.W.2d 74, 75-76 (Mo. App. 1992)).
In Barnes we addressed the same issue raised in this appeal under a prior version of Section 1.160(2) which provided "that if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense, the penalty or punishment shall...
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