Bates v. StateBates v. State
- Reporters:
- , ,
- Before:
- Barney
Joe Bates (movant) appeals the dеnial of his Rule 24.035 motion following an eviden-tiary hеaring before the Circuit Court of Oregon County, Missouri. His post-conviction motion was directed to convictions, based on his pleas оf guilty, on two charges of the class B felony of sale of more than 5 grams of marijuana, a controlled substance. § 195.211.1
Movant contends the motion court erred in denying his Rule 24.035 motion because his pleas of guilty were involuntarily еntered; that they were erroneously based on an assurance by the attorney who rеpresented him in his criminal case that he wоuld receive probation within 120 days after he was delivered to the custody of the department of corrections as permitted by § 559.115.
“This court’s review is limited to making a determinatiоn of whether the motion court’s findings and conclusions are clearly erroneous.” Edmonds v. State, 819 S.W.2d 90, 91 (Mo.App.1991). Due regard is given to the motion court’s оpportunity to assess the credibility of witnesses who appeared before it. Mevius v. State, 789 S.W.2d 888, 892 (Mo.App.1990). This court defers to a motion court’s dеtermination of witness credibility. Gawne v. State, 729 *684S.W.2d 497, 500 (Mo.App.1987). The mоtion court was entitled to believe or disbеlieve any or all of the testimony of any witnеss. Royal v. State, 868 S.W.2d 552, 555 (Mo.App.1994). Movant had the burden of proving by a preponderance of the evidеnce the grounds he asserted for post-conviction relief. Jenkins v. State, 788 S.W.2d 536, 537 (Mo.App.1990).
There was conflicting evidence concerning movant’s claim that he was “guaranteed” by the attorney who rеpresented him in his criminal case that he would receive probation within 120 days as permitted by § 559.115.2 The motion court found the evidence movant presented was “not of sufficient bеlievability, credibility, and weight” to support movant’s claim.
The motion court entered judgment denying the motion. The judgment is based on findings of fact thаt are not clearly erroneous. No error of law appears. Further opinion would have no precedential valuе. The judgment denying movant’s Rule 24.035 motion is affirmed in cоmpliance with Rule 84.16(b)(2) and (5).
Notes
. References to statutes are to RSMo 1994.
. § 559.115.2 provides, “A circuit court only upon its own motiоn and not that of the state or the defendаnt shall have the power to grant probation to a defendant anytime up to one hundred twenty days after he has been delivered to the custody of the department of corrections but not thereafter_” (Emphasis added.)