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Self v. State2/10/2000
AFFIRMED
Damon Self (movant) appeals the denial of a post-conviction motion he filed pursuant to Rule 24.035. Movant's Rule 24.035 motion was directed to a conviction for felony driving while intoxicated in violation of section 577.010.1. The offense was a felony in that movant was charged as, and found to be, a persistent offender. See sections 577.023.1(2) and .3. He was sentenced to an extended term of imprisonment as permitted by section 558.016.1. This court affirms.
This court notes:
he appellate court's review of a Rule 24.035 motion is limited to a determination of whether the motion court's findings, conclusions and judgment are clearly erroneous. Edmonds v. State, 819 S.W.2d 90, 91 (Mo.App. 1991); Rule 24.035(j) [now Rule 24.035(k)]. They will be considered clearly erroneous if, upon review of the entire record, the "appellate court is left with the 'definite and firm impression that a mistake has been made.'" Foster v. State, 748 S.W.2d 903, 905 (Mo.App. 1988) (quoting Stokes v. State, 688 S.W.2d 19, 21 (Mo.App. 1985)).
Woods v. State, 861 S.W.2d 577, 579 (Mo.App. 1993).
Movant pleaded guilty to having operated a motor vehicle on or about October 19, 1997, in Greene County, Missouri, while in an intoxicated condition. He admitted, as was charged by the information, that he had pleaded guilty on February 13, 1996, in the Associate Circuit Judge Division of the Circuit Court of Greene County, to the offense of driving while intoxicated on January 15, 1996, and had pleaded guilty on May 29, 1992, to the offense of driving while intoxicated on November 12, 1991. These were the offenses on which he was determined to be a persistent offender for purposes of section 577.023.1(2) and .3.
The part of the information in movant's underlying criminal case that asserted he was punishable as a persistent offender by sentence to an extended term of imprisonment pursuant to section 558.016.1 and .3 alleged:
1. On or about February 13, 1996, defendant pleaded guilty to the felony of driving while intoxicated in Case No. 396CF0335 in the Circuit Court of Greene County, Missouri.
2. On or about February 13, 1996, defendant pleaded guilty to the felony of driving while intoxicated in Case No. 395CF1439 in the Circuit Court of Greene County, Missouri.
Movant was asked at the guilty plea hearing in the underlying criminal case if he had pleaded guilty to the two felony offenses on February 13, 1996, and if those offenses had been "committed at different times from each other." He answered each question asked, "Yes, sir."
Movant presents two points on appeal. The issue to which Point I is directed is that the same case, Greene County Circuit Court Case No. 396CF0335, was used to establish that the charge in the underlying criminal case was a felony because it was a third alcohol-related offense and to establish that movant was subject to punishment by an extended term of imprisonment as a persistent offender. Point I contends the motion court erred in denying movant's Rule 24.035 motion because the sentence imposed in his underlying criminal case was in excess of the maximum punishment allowable by law because the trial court's reliance on the same case to establish the offense for which movant was sentenced was a felony and as a basis for sentencing him to an extended term of imprisonment "impermissibly doubly enhanced [movant's] punishment."
The range of punishment for third offense driving while intoxicated, a class D felony, is "a term of years not to exceed five years." section 558.011.1(4). However, the maximum punishment for a persistent offender who commits
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