Alvin Ennis (Mоvant) was sentenced to two concurrent ten-year terms after pleading guilty to two counts of sodomy, § 566.060. 1 Thereafter he filed a timely motion to set aside the judgment and sentence pursuant to Rule 24.035 2 in which he alleged, among other things, that the trial court had violated Rule 24.02(e) by not determining that a factual basis existed for the guilty pleas. The motion was denied after Movant, by appointed counsel, requested that the court “take judicial notice of the files in this matter and rule movant’s motion based upon the record.”
Movant’s sole point on this appeal is that the motion court clearly erred in finding that a factual basis existed for his guilty pleas. He argues that the only factual basis for the charges which was identified by the trial court at the time of the guilty pleas was Movant’s admission that he had sexual intercourse with his two granddaughters. He contends that such an admission was insufficient to support a conviction of sodomy under § 566.060 because there was no factual showing of the required element of “deviate sexual intercourse.”
Movant was chargеd, by an Amended Information, with having “deviate sexual intercourse” with each of his two granddaughters to whom he was not married and who were each then less than fourteen years old. In a document entitled “Guilty Plea” (hereafter referred to as Exhibit A) signed by Movant and recеived by the trial court at the time of the plea, Movant said that he understood that he was charged with “sodomy” for which the penalty was “5 to 15 years”; that he had a preliminary hearing at which he was represented by an attorney; that he had consulted about the сase with his attorney who had “explained the offense charged in the Information and the punishment that can be assessed”; that he was satisfied that his attorney had properly represented and advised him; and that he was pleading guilty of his own free will because hе was guilty as charged in the Information. Exhibit A also required Movant to state what he did to cause the charge to be filed, to which he responded: “I had sexual intercourse with [his two granddaughters].”
At the time of his guilty plea, Movant waived formal arraignment and entered a plea of guilty. He told the court that there had been ample time for him to discuss the case with his attorney and that he was pleading guilty voluntarily because he was guilty. He also told the court that he understood each question contained in Exhibit A and that his answers to those questions were true and correct. He answered, “yes, sir,” when the trial court asked him, “did you, as charged have sexual intercourse with ... a person less than fourteen years of age and to whom you were not married?” The record before us does not indicate thаt any other information was established at the plea hearing concerning the factual basis for the two charges.
In reviewing the court’s action concerning a motion under Rule 24.035, the appellate court is limited to a determination of whether the findings and сonclusions of the trial court were clearly erroneous. Rule 24.035(j);
Trehan v. State,
Rule 24.02(e) provides, “[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a
*773
factual basis for the plea.” If the facts do not establish an offense, the court must reject the guilty plea.
Green v. State,
Movant relies heavily on
Hoskin v. State,
Count V alleged the crime of attempted sodomy. All that was before the court was its reading of the charge defendant “attempted to have deviate sexual intercourse with D.G.” to whom he was not married, without consent, and by use of forcible compulsion. The requirements of Rule 24.02(e) were not met in the absence of any description of the nature of the defendant’s acts which would constitute commission of attempted sodomy. On a blank record, the term deviate sexual intercourse is an unknown. The conviction based on the guilty plea on Count V must be set aside for failure to comply with Rule 24.02(e). Jones v. State,758 S.W.2d 153 , 155 (Mo.App.1988). The plea court was not authorized to accept a guilty plea on this count. Hence, the conviction based on the plea violates the law expressed in Rule 24.035(a) and must be set aside.
Id. at 639.
In
Jones v. State,
And, while the court did determine that Jones knew that the charge was second degree robbery, there was absolutely no mention of what allegedly occurred; the reсord does not establish Jones was cognizant of the facts which the State would rely upon at a trial in order to establish Jones’ guilt. The court’s sole reference to the incident in question was Judge Robert L. Campbell’s statement that Jones’ code-fendant had prеviously pled guilty and that the codefendant, and not Jones, had the gun. These facts established no factual basis for court to accept the guilty plea. A court should reject a guilty plea if the facts elicited at the guilty plea proceeding do not еstablish the commission of a crime. [Citation omitted.] Thus, this court is constrained to hold that the motion court clearly erred in finding that the record of the guilty plea proceeding established a sufficient factual basis for Jones’ plea of guilty.
Id at 155.
The State attempts to distinguish the
Hoskin
case by relying on
McDonald v. State,
The State also relies on
Sales v. State,
In subsequent cases this court has denied postconviction relief based on alleged Rule 24.02(e) violations where, as in
Sales,
it was expressly established that the defendant understood the charges, that he had discussed them with his attorney, and that he understood the facts of the case.
See Morgan v. State,
Two other cases decided by this court, coupled with the
Jones
and
Hoskin
cases, make it apparent, however, that we must grant relief in the instant ease. In
Hutson v. State, 878
S.W.2d 497, 498 (Mo.App.S.D.1994), we affirmed a denial of a Rule 24.035 motion in a case where the prosecutor had, at the guilty plea proceeding, “clearly stated facts relating to the offense of Burglary in the Second Degree, eliminating the requirement under Burglary First of a person being present in the inhabitable structure being burglarized, the very factor distinguishing Burglary First from Burglary Second.” In
Rios v. State,
In the instant case, however, the Amended Information, the reading of which was waived, charged that defendant had “deviate sexual intercourse” with each of his two granddaughters to whom he wаs not married and each of whom was under fourteen years of age. As noted in
Hoskin v. State,
“Sexual intercourse” is defined as “any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results.” § 566.010(3). This is distinguished from the definition of “deviate sexual intercourse” contained in § 566.010(1) which is “any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person.” “Sexual intercourse” would form the basis for a conviction of rape pursuant tо § 566.030 but not the offense of sodomy under § 566.060.
It is true that in the instant case Movant acknowledged that he had a preliminary hearing, that he had consulted with his attorney who had explained the offense charged in the Information, and he made statements *775 which would have othеrwise been sufficient to bring this case within the holding of our earlier opinions in Sales, McDonald, Morgan and Trehan. However, Movant’s own statement was that the factual basis for the charge was “sexual intercourse.” This was not questioned at the plea proceedings, and in fact the trial court in effеct told Movant that he was charged with having “sexual intercourse” with his granddaughters. In our opinion, this distinguishes the instant case from our earlier opinions referred to above.
In the instant case, unlike
Rios,
there was no explanation of the correct nature of the charge coupled with a reading of the Information. The instant case is also distinguished from
Row, Hutson
and
Pippenger v. State,
It has been held that Rule 24.02(e) is an aid to the constitutionally required dеtermination that a defendant enter a plea of guilty intelligently and voluntarily.
Sales v. State,