Andrew M. Marty v. State of Missouri

577 S.W.3d 157

• Court: Missouri Court of Appeals
• Decided: June 11, 2019
• Docket: ED107060
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION TWO

ANDREW M. MARTY, ) No. ED107060 ) Appellant, ) Appeal from the Circuit Court of ) Jefferson County vs. ) ) Honorable Darrell E. Missey STATE OF MISSOURI, ) ) Respondent. ) Filed: June 11, 2019

This is an appeal from the denial of a post-conviction relief motion on the class C felony

of stealing by the motion court. We dismiss this appeal for lack of jurisdiction.

Movant Andrew Marty (“Marty”) appeals the motion court’s denial, without an

evidentiary hearing, of his amended motion for post-conviction relief under Mo. Sup. Ct. Rule

24.035.1 On May 28, 2013, Marty pleaded guilty to the class C felony of stealing under

§ 570.030.3 RSMo2 for the theft of a credit card and purse. Marty contends the motion court

clearly erred in denying his motion for post-conviction relief, claiming the suspended execution

sentence entered on July 29, 2013 exceeded the maximum authorized by law under the Supreme

Court of Missouri’s holding in State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016).

1 All rule citations are to Missouri Supreme Court Rules (2018) unless otherwise indicated. 2 All statutory references are to the Revised Statutes of Missouri (2000) unless otherwise indicated. Procedural Background

On May 28, 2013, Marty pleaded guilty in three cases, facing two separate charges of the

class C felony of stealing and one for tampering. In this case, the State alleged on August 28,

2012, Marty took a purse containing a credit card. In all cases, Marty was sentenced to five years

of imprisonment in the Missouri Department of Corrections to run concurrently. The court

suspended execution of Marty’s sentences and placed him on five years of supervised probation.

On January 4, 2017, the court discharged Marty from probation on both felony stealing

charges, referencing State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016). In the same hearing, the

trial court revoked Marty’s probation in the tampering case, ordering the five-year sentence

executed. Marty was delivered to MDOC on his sentence for tampering alone on January 12,

2017 to begin serving his sentence on the tampering charge. In both felony stealing cases, he

timely filed his pro-se motion, which was timely amended by Motion Counsel on July 24, 2017.

Marty’s Motion counsel raised the same argument in both felony stealing cases for post-

conviction review, alleging five-year sentences for stealing under § 570.030.3 RSMo 2009

exceeded the maximum allowed by law under State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016).

On July 13, 2018, in both felony stealing cases, the Court denied Marty’s request for

resentencing, noting the Court of Appeals has determined such relief is not available under Rule

24.035 for pre-Bazell sentences, citing Watson v. State,545 S.W.3d 909 (Mo. App. W.D. 2018).

Legal Analysis of Jurisdiction

At the outset of every case, we assess our own jurisdiction in addition to that of the trial

court below, because a decision without jurisdiction is a legal nullity. Hussmann Corp. v. UQM

Elecs. Inc., 172 S.W.3d 918, 920 (Mo. App. E.D. 2005). An appellate court must always

determine whether it has the authority to address the merits of an appeal, with our jurisdiction

2 deriving from proper exercise of jurisdiction of the court below. Viehweg v. Mello, 8 S.W.3d

187, 188 (Mo. App. E.D. 1999).

Rule 24.035(b) provides that where a defendant does not directly appeal the judgment,

the defendant must file the Rule 24.035 motion within ninety days of the date the defendant is

delivered to the Department of Corrections. Here, Marty was never delivered to the Department

of Corrections on his conviction of felony stealing. Instead, his probation was discharged, which

terminated the trial court's jurisdiction. Norfolk v. State, 200 S.W.3d 36, 38 (Mo. App. W.D.

2006). The same is true in his other pending appeal for post-conviction relief from his discharged

probation for felony stealing on identical briefing.

In short, Marty was incarcerated on an unrelated conviction; he had not been imprisoned

on the conviction underlying this post-conviction claim. In such circumstances, the appropriate

disposition is dismissal. See Hopkins v. State, 802 S.W.2d 956, 958 (Mo.App. W.D. 1991).

Conclusion

After reviewing the record on appeal and the appellate briefs of the parties, we dismiss

this appeal for lack of jurisdiction.

_______________________________ Philip M. Hess, Presiding Judge

Robert G. Dowd, Jr., J. and Mary K. Hoff, J. concur.