Etenburn v. State
2012 Mo. App. LEXIS 1175
| Mo. Ct. App. | 2012Background
- Charles Etenburn’s first Rule 24.035 post-conviction motion was denied and affirmed on appeal.
- This court previously held that three written judgments deviated from the plea court’s oral sentences and remanded to correct them.
- On remand, the motion court corrected the three written judgments to reflect the oral pronouncement.
- Etenburn later filed a second Rule 24.035 post-conviction motion alleging due process because he was resentenced without personal presence.
- The motion court denied the second motion as successive; Etenburn appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a due process violation based on resentencing without presence? | Etenburn asserts he was resentenced without personal presence. | State contends no resentencing occurred; only correction of a written judgment. | Point I denied; no resentencing occurred. |
| Must counsel be appointed before dismissing a successive Rule 24.035 motion? | Etenburn contends counsel should be appointed for a successive motion. | State argues no appointment required for successive motions. | Point II denied; appointment not required. |
Key Cases Cited
- Hall v. State, 190 S.W.3d 533 (Mo. App. 2006) (limited remand for correcting judgments to reflect oral pronouncement)
- Samuel v. State, 156 S.W.3d 482 (Mo. App. 2005) (remand for correction of written judgments)
- Robinson v. State, 359 S.W.3d 568 (Mo. App. 2012) (remand for clerical correction of written judgment)
- Shaw v. State, 347 S.W.3d 142 (Mo. App. 2011) (remand for clerical correction of written judgment)
- Hight v. State, 841 S.W.2d 278 (Mo. App. 1992) (correction of written judgments not resentencing)
- Pettis v. State, 212 S.W.3d 189 (Mo. App. 2007) (remand for resentencing when appropriate)
- Matthews v. State, 123 S.W.3d 307 (Mo. App. 2003) (remand for resentencing; clarifies remand purposes)