921 S.W.2d 680 | Mo. Ct. App. | 1996
Ronald H. Roth appeals the denial of his Rule 24.035 motion after an evidentiary hearing. Mr. Roth sought to vacate his conviction for passing a bad check over $150 in violation of section 570.120, RSMo 1994 and sentence of four years imprisonment. The
On April 18,1994, Mr. Roth pleaded guilty to one count of passing a bad check over $150. In exchange for his guilty plea, the state agreed to recommend a four year sentence to run concurrently with a federal sentence Mr. Roth was currently serving. After extensive questioning of Mr. Roth regarding his understanding of the consequences of his guilty plea, the court accepted the plea and found it to be knowing and voluntary. Mr. Roth then waived a presentence investigation and was sentenced to four years imprisonment to be served consecutively to his federal sentence. Execution of the sentence was stayed until Mr. Roth completed his confinement at the Federal Correctional Institution in Texarkana, Texas.
On July 11,1994, Mr. Roth filed his pro se Rule 24.035 motion for postconviction relief on a Criminal Procedure Form No. 40. An amended motion was filed by appointed counsel on his behalf on November 1, 1994. The motions alleged, among other things, that Mr. Roth’s plea was unknowing and involuntary because the plea court failed to allow him to withdraw his plea of guilty after the court declined to sentence him to a four-year term concurrent to the federal sentence he was then serving. After an evidentiary hearing, the motion court entered findings of fact and conclusions of law denying Mr. Roth’s postconviction motion.
On appeal, Mr. Roth claims the motion court erred in denying his Rule 24.035 motion. He argues that (1) he did not understand the plea agreement negotiated included a recommendation by the prosecutor to the court that he receive a concurrent four-year sentence and did not include a binding requirement on the court to impose the sentence; and (2) the plea court violated Rule 24.02(d)(4) and Schellert v. State, 569 S.W.2d 735 (Mo. banc 1978), by failing to inform him that it was rejecting the state’s sentence recommendation and by not allowing him the opportunity to withdraw his guilty plea. The state argues that Mr. Roth waived his right to proceed under Rule 24.035 when he failed to indicate in his motions the date upon which he was delivered to the custody of the Missouri Department of Corrections.
Although the state did not move to dismiss Mr. Roth’s motion for postconviction relief, and the motion court did not consider the timeliness of his motion
Although Mr. Roth failed to indicate in his motions the date upon which he was delivered to the custody of the department of corrections, the record is clear that he was not yet in the custody of the Missouri Department of Corrections on July 11,1994, the date he filed his pro se Rule 24.035 motion for postconviction relief. At the plea and sentencing hearing, Mr. Roth testified that
The order denying the Rule 24.035 motion is, therefore, vacated, and the case is remanded to the motion court with directions to enter an order of dismissal without prejudice.
All concur.
. The motion court merely stated in its findings of fact and conclusions of law that Mr. Roth timely filed a Motion to Vacate, Set Aside, or Correct Judgment and Sentence.