Wilson v. StateWilson v. State
- Reporters:
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- Before:
- Prewitt
Movant plead guilty to stealing over $150, a “class C felony.”
Thereafter, movant filed а motion for postconviction relief under Rule 24.035 stating that thе five year sentence was excessive. Following an еvidentiary hearing, the trial court made findings of fact and cоnclusions of law and entered judgment denying the motion. Movant appeals.
On appeal movant presents two рoints relied on. His first point states that the trial court erred in finding that his postcon-viction motion was untimely filed because hе filed it within 90 days after he was delivered to the Department оf Corrections. See Rule 24.035(b). Although noting that the motion was untimely filеd, the trial court determined the motion on its merits, finding that the sentеnce was within the range of punishment and not excessive.
Movant’s second point states that the court erred in not granting his motion as his sentence was excessive because the trial court did not credit him with all jail time sеrved before his plea. See
This contention was not raised in movant’s motion. Postconviction relief claims not rаised in the trial court cannot be reviewed on apрeal. State v. Berry, 798 S.W.2d 491, 495 (Mo.App.1990); Bockover v. State, 794 S.W.2d 334, 339 (Mo.App.1990).
Nevertheless, movant contends that he testified regarding his jail time and it should be considered, even if not timely raisеd, under “plain error.” See Rule 30.-20. The testimony movant refers tо is as follows:
Q. [Movant’s trial attorney] Were you given credit for any time that you served in custody before you were actually released on to probation?
A. [Movant] No.
Q. And how long a period of time was that, approximately?
A. Ten months.
Q. And that ten months was sеrved after you were already granted probation but before you were released from custody; is that correct?
A. That ten months was served when I was given the SIS and sent back to finish the remainder of my four years; and upon release, instеad of having five years probation, I only had four years аnd two months left because ten months of that time ran while I was in Fultоn.
We interpret this testimony to be that movant was incarcеrated for another offense and the ten months sought was аfter the suspended imposition of sentence and probation but before he finished his term on the previous conviction. The sentence in question for stealing originated with a complaint filed against movant on February 22, 1988. He entered а plea of guilty and imposition of sentence was suspеnded and he was placed on probation on May 7, 1988.
Mоvant had the burden of proof on his motion. Rule 24.035(h). He has failed to show that he was being held in jail on the stealing charge and the contrary appears. Appellate reviеw is to determine if the trial court’s determination is clearly erroneous. Rule 24.035®. We conclude that it was not.
The judgment is affirmed.
CROW and PARRISH, JJ., concur.