Criminal Law

Ellen H. Flottman, Esquire

Post-conviction time limits run from initial delivery to the Department of Corrections, even where movant is delivered at different times to serve sentences within a single judgment. Swallow v. State, No. 92432 (Mo. banc, May 14, 2013), Breckenridge, J.

Post-conviction movant appeals the dismissal as untimely of his Rule 24.035 motion.

Held:  Affirmed.
  Movant was delivered to the Department of Corrections at different times to serve the sentences within a single judgment. The Missouri Supreme Court held that the initial delivery to the department of corrections controls, and all counts had to be challenged within 180 days of that delivery date.

Adding a second charge which was not a lesser included offense after the close of the evidence violated due process. State v. Shepherd, No. 31778 (Mo. App. S.D., May 21, 2013) Rahmeyer, J.

Defendant was convicted of sexual misconduct involving a child.

  Vacated with directions to quash the information. Defendant was originally charged with child molestation in the first degree. The State was permitted to amend the information after the close of the evidence to charge a second count, sexual misconduct involving a child, involving different conduct than originally charged. The jury found Defendant guilty only of the second charge. As sexual misconduct involving a child was different conduct than that originally charged, and it was not a lesser included offenses, this allowed the jury to find Defendant guilty of an offense for which he was not tried, not given fair notice, and not given a meaningful opportunity to defend.

No exigent circumstances permitted blood draw without a warrant; natural metabolization of alcohol does not present a per se exigency. State v. Reed, No. 32465 (Mo. App. S.D., May 24, 2013), Rahmeyer, J.

Defendant was charged with driving while intoxicated.  The trial court suppressed the laboratory results of a blood draw without a warrant and the State appealed.

Held:  Affirmed.
  The trial court’s finding that no exigent circumstances necessitated the blood draw without a warrant anticipated the recent United States Supreme Court case of Missouri v. McNeely, 81 ULSW 4250 (April 17, 2013).

Misleading information by appellate counsel does not excuse late filing of 29.15 motion. Talley v. State, No. 31527 (Mo. App. S.D., May 24, 2013) Bates, J.

Appeal from an order dismissing a Rule 29.15 postconviction motion as untimely filed. 

Held:  Affirmed.
  Although appellate counsel misled the movant, telling him that a motion to transfer the appeal to the Missouri Supreme Court had been filed, when in fact the court of appeals mandate had issued, this case still does not fall within the “rare circumstances” exception to the time limits of Rule 29.15(b). The actions of counsel excuse a late filing only when they amount to abandonment.

Rosalynn Koch, Esquire

Rule 29.07(d) cannot be invoked to challenge the legality of a sentence imposed after a guilty plea. State v. Orate, No. 73778 (Mo. App. W.D., May 7, 2013), Mitchell, J.

After pleading guilty and being sentenced, defendant unsuccessfully filed a motion for relief alleging that he had not received the benefit of his plea agreement.

Held:  Affirmed
. Rule 29.07(d) affords somewhat broad relief before sentencing, but after sentencing its reach is limited to questions of jurisdiction or the sufficiency of the charging documents. All other claims must proceed under Rule 24.035.

No remand to trial court due to newly discovered school records indicating child victim was actually not absent from school, as he claimed at trial, at the date and time defendant allegedly molested him. State v. Hannon, No. 96915 (Mo. App. E.D., May 7, 2013), Cohen, J.

Victim testified that the defendant molested him while he was absent from school. This allegedly occurred the day before victim went to live with his grandmother. Defendant requested the appeals court to remand the matter to the trial court due to newly discovered evidence—that, contrary to his testimony, the victim attended school on that day.

Held:  Motion to remand denied
. The records impeached the victim’s testimony that he was absent, but he could have been molested before or after school or on another date since the defendant had routine access to the home. The new evidence did not demonstrate that the victim’s accusations were false, but merely showed that he was incorrect about the date in question.

A claim that the motion court failed to make required findings must be raised in a motion to amend the judgment under Rule 78.07(c) to be preserved for appellate review. Atchison v. State, No. 31999 (Mo. App. S.D.,
May 13, 2013), Sheffield, J.

On appeal from denial of postconviction motion, movant claimed that the court erred in failing to enter findings of fact and conclusions of law.

Held: Affirmed.

Counsel’s failure to challenge verdict directors that did not differentiate between two acts of sodomy constituted ineffective assistance, but defendant was not prejudiced because the jury was aware of the nature of the two charges. Barmettler v. State, No. 98568 (Mo. App. E.D., May 28, 2013), Odenwald, J.

Movant challenged counsel’s failure to object to identical verdict directors for statutory sodomy.

Held: Affirmed
. Counsel should have objected to the court’s failure to distinguish the  incidents, but the state’s case was focused on the two instances of abuse and did not emphasize other, uncharged, acts. The jury was not misled or confused by the identical instructions.