 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Ross v. State7/17/2000
Appeal From: Circuit Court of Wayne County, Hon. J. Max Price
Opinion Vote: AFFIRMED. Crow, P.J., and Shrum, J., concur.
Opinion:
This is an appeal of a motion for post-conviction relief. David A. Ross (movant) was convicted of driving while intoxicated, third offense, a Class D felony. See sections 577.010.1 and 577.023.1(2) and .3. He was charged as and found to be a persistent offender pursuant to sections 577.023.1(2) and 558.016.3 and sentenced to an extended term of imprisonment of ten years. See section 558.016.7(4). Following an unsuccessful appeal of his criminal case, movant filed a pro se motion for post-conviction relief as permitted by Rule 29.15. Counsel was appointed and an amended motion filed. An evidentiary hearing was held after which the motion court filed findings of fact and conclusions of law and entered judgment denying the motion. This court affirms.
Movant's underlying criminal offense occurred December 16, 1995, in Wayne County, Missouri. He was charged by information filed May 20, 1996, in the Circuit Court of Wayne County. Trial was scheduled for August 2, 1996. Movant was represented by a public defender. Prior to the trial date, the state made a negotiated plea offer. It offered to recommend a sentence of three years' imprisonment with the state expressing no opposition to a "120 day call back." On July 29, 1996, the state and defendant appeared before the trial court and announced that an agreement had been reached and requested that the case be passed for guilty plea. The request was granted. Movant was ordered to appear August 22, 1996, "for plea." The August 2, 1996, trial date was stricken.
On August 22, 1996, the parties appeared. Movant's public defender announced they were not going to proceed with the plea of guilty. The case was reset for jury trial on October 18, 1996. On October 16, 1996, employed counsel entered an appearance for movant and filed a request for continuance. On October 18, 1996, the case was called but movant did not appear. Capias was ordered and the case reset for jury trial November 13, 1996.
On November 13, 1996, movant appeared with his attorney. The trial court withdrew the capias warrant for movant's arrest and reset the case for jury trial February 7, 1997.
The parties appeared February 7, 1997. Movant was represented by his employed trial counsel. An amended information was filed charging movant as a prior and persistent offender. Movant was arraigned on the charge as amended. The amended information that was read to movant included the language, "[Movant] is also a persistent offender, punishable by sentence to an extended term of imprisonment. . . ." At the end of the prosecuting attorney's recitation of the charge set forth in the amended information, he advised movant, "The range of punishment for the extended term is imprisonment for an extended term of years not to exceed ten years."
After the amended information was read to movant, together with the prosecutor's statement of the range of punishment, movant was asked how he pleaded. He answered, "Not guilty."
The case proceeded to trial. Movant was found guilty. On March 25, 1997, the trial court sentenced him to ten years' imprisonment.
Movant's sole point on appeal asserts the motion court erred in finding he was not denied effective assistance of trial counsel. He argues that he was not advised by counsel that he could be charged as a persistent offender and thereby receive an enhanced sentence; that had he known this, he would have pleaded guilty when offered the three-year negotiated plea.
The motion court found that even if movant's
Page 1 2 Missouri DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|