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Criminal Law

Ellen H. Flottman, Esquire

Convictions of stalking and violating an order of protection for the same conduct do not violate double jeopardy. State v. Stewart, No. 30307 (Mo. App. S.D., July 26, 2011), Bates, J.

Defendant was convicted of stalking and violating an order of protection.

Held:  Affirmed.

Possible imposition of lifetime supervision not ripe for review. State v. Cannafax, No. 30327 (Mo. App. S.D., July 22, 2011), Francis Jr., J.

Defendant was convicted of statutory rape and statutory sodomy following a bench trial.

Held:  Affirmed.
It is unclear whether Defendant would be subject to lifetime supervision by the Board of Probation and Parole, as his offenses were charged to have occurred between June 7, 2006 and November 5, 2008. Section 217.735 requires the act to have been committed on or after August 28, 2006, for lifetime supervision to be imposed. Defendant may have a future remedy, but this issue is not ripe for review.


Rosalynn Koch, Esquire 

Rule 29.15(j) requires specific findings; the motion court's findings reciting that the movant failed to prove ineffective assistance of counsel and that trial counsel employed trial strategy were insufficient. Kevin Darnell Smith v. State, No.72074 (Mo. App., W.D. July 19, 2011), Ellis, J.

Movant's Rule 29.15 motion was denied in part by an order in which the motion court ruled that he "failed to allege specific facts as to the remainder of his claims" and that counsel "used his discretion in making trial strategy decisions."

Held:  Reversed and remanded for entry of findings of fact and conclusions of law. The reviewing court could not meaningfully review the findings. It could not tell what "specific facts" the motion failed to allege; nor was could it ascertain what "strategy decisions" counsel used or whether the strategy was reasonable.

Under the facts presented, claim of abandonment in the course of a post-conviction action could not be raised for the first time on appeal, but should be raised through a motion to reopen the post-conviction case. Terry L. Hutton v. State, No.72236 (Mo. App., W.D. July 26, 2011), Mitchell, J.

After movant filed a pro se Rule 29.15 motion, trial counsel filed another which the motion court assumed to be an amended motion. The Public Defender was appointed but all notices related to the case were sent to trial counsel. The motion court dismissed the motion without an evidentiary hearing.

Held: Affirmed. Although the trial attorneys were ethically prohibited from representing movant in his post-conviction action (and most likely did not intend to do so), the conflict is not tantamount to abandonment. The better procedure is to move to reopen the case in the motion court to determine whether movant was abandoned.

The Missouri Bar Courts Bulletin, 11-Aug

Back to August 2011 Court Bulletin summary