Vangunda v. State, 20602
Decision Date | 06 May 1996 |
Docket Number | No. 20602,20602 |
Citation | 922 S.W.2d 857 |
Parties | Melvin VANGUNDA, Appellant, v. STATE of Missouri, Respondent. |
Court | Missouri Court of Appeals |
Ellen H. Flottman, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
Melvin Vangunda (Movant) appeals from an order of the circuit court that dismissed his Rule 24.035 motion for postconviction relief. The motion court, applying Missouri's "escape rule," held that since Movant "fail[ed] to appear for sentencing when ordered to do so by the sentencing court" he thereby "waived his right to post-conviction relief." We agree and affirm.
On March 1, 1994, Movant pled guilty to passing a bad check, § 570.120, RSMo 1994, and forgery, § 570.090.1(1), RSMo 1994. The court accepted the plea agreement of five years on each charge, but did so upon the express condition that Movant appear for sentencing on March 7, 1994. The trial court told Movant that if he failed to appear as scheduled, he would be subject to a twelve-year sentence. After Movant acknowledged that he understood the consequences if he failed to appear, he was released on his own recognizance.
Movant did not appear for sentencing on March 7, 1994. As a result, the court was unable to sentence him until May 17, 1994. On that date, the court sentenced Movant to five years for passing a bad check and seven years for forgery, to be served consecutively.
On June 29, 1994, Movant filed a pro se Rule 24.035 motion for postconviction relief. Movant's subsequently-appointed lawyer filed an amended motion and a hearing on the motion was set for August 2, 1995. At the hearing, the State moved to dismiss Movant's motion because of his failure to appear for sentencing on March 7, 1994. Applying the "escape rule," the court dismissed Movant's postconviction motion. This appeal followed.
In Hicks v. State, 824 S.W.2d 132 (Mo.App.1992), this court traced the development of the "escape rule" in Missouri and examined the various rationales supporting it. Id. at 133-34. Regarding application of the escape rule to postconviction cases, we said:
Id. at 134 [2, 3]. In Hicks, we further noted that in postconviction relief cases, the escape rule has been invoked both to dismiss appeals where the motion court reached the merits of the movant's claim and also to affirm the motion court's judgment where it has dismissed the motion based on its application of the escape rule. Id. Hicks was in the former posture; here, we find ourselves in the latter situation.
The continued viability of the escape rule in Missouri was recently confirmed by our Supreme Court in State v. Troupe, 891 S.W.2d 808 (Mo. banc 1995):
Id. at 809 (citations omitted).
With the above as background, we turn now to Movant's singular point that the motion court erred in dismissing his postconviction motion because its dismissal order "was based on the incorrect assumptions that [movant's] failure to appear at sentencing barred him from proceeding under Rule 24.035, and that the motion court had no discretion to rule on the merits." Movant relies primarily on Troupe, Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993), and Sinclair v. State, 708 S.W.2d 333 (Mo.App.1986), but ignores Clayton v. State, 910 S.W.2d 369, 370 (Mo.App.1995), a post-Troupe decision of this court.
Regarding Sinclair, we note that it involved an attempt by an accused to escape and that the reasoning and holding of Sinclair have been limited to that situation. See State v. Woods, 812 S.W.2d 267, 268 (Mo.App.1991). Since the instant case does not involve an attempted escape, Movant's reliance on Sinclair is misplaced. Id.
In developing his point, Movant states--correctly so--that Troupe declined to follow the reasoning of Ortega-Rodriguez and decided not to depart from Missouri precedent. 1 Nevertheless, he insists that Ortega-Rodriguez is still instructive on the issue before us because Troupe held that the matter of the application of the "escape rule" was, as Movant states it in his brief, "one for the discretion of the dismissing court."
In making such argument, Movant is obviously relying upon this language from Troupe:
...
To continue reading
Request your trial-
Yates v. Progressive Preferred Ins. Co.
... ... that a particular interpretation of an insurance policy violates the public policy of the state are reviewed de novo. See Am. Standard Ins. Co. v. Hargrave, 34 S.W.3d 88, 89 (Mo. banc 2000); ... ...
-
Echols v. State
...of the movant's claim and to affirm the motion court's dismissal of a motion based on its own application of the rule. Vangunda v. State, 922 S.W.2d 857, 858 (Mo.App.1996). This case, like Vangunda, deals with the latter Echols claims that the motion court clearly erred in granting the Stat......
-
Nichols v. State
...court reaches the merits of a movant's claim or dismisses the motion based on its application of the escape rule. Vangunda v. State, 922 S.W.2d 857, 858 (Mo.App. S.D.1996). The escape rule applies to errors that occur prior and up to the time of escape, but errors occurring after recapture ......
-
Gray v. State, 21981
...has been applied to deny relief under a post-conviction motion where the movant failed to appear for sentencing. Vangunda v. State, 922 S.W.2d 857, 858-59 (Mo.App. S.D.1996). The same has been true where a movant, who was on probation, left the state without informing his probation officer.......