State v. Harris

863 S.W.2d 699, 1993 Mo. App. LEXIS 1682, 1993 WL 442009

Opinions

GARRISON, Judge.

Bobby Gene Harris (Movant) entered a plea of guilty to the Class D felony of driving while intoxicated under an information which also alleged two prior convictions. On June 17, 1992, he was sentenced to three years’ imprisonment and fined $500 as a persistent offender pursuant to § 577.023.¹ Execution of the sentence was suspended and he was placed on probation for three years. Movant filed no direct appeal from that judgment and sentence.

On June 30, 1992, the Missouri Supreme Court decided State v. Stewart, 832 S.W.2d 911 (Mo. banc 1992). The Stewart opinion construed § 577.023 to require three prior convictions, rather than two, in order to charge “persistent offender” status and authorize the imposition of punishment permitted for a Class D felony. In the Stewart opinion, the Supreme Court said that the decision had “retrospective application ... to all pending cases not finally adjudicated as to the date of this opinion.” 832 S.W.2d at 914.

On July 14, 1992, Movant filed a motion under Rule 29.13² wherein he alleged that, by reason of the Stewart opinion, the facts stated in the information did not constitute an offense. He requested that the judgment be set aside and the felony information be dismissed. Movant appeals the subsequent denial of that motion.

The issue on this appeal is whether Movant’s ease was “pending” and “not finally adjudicated” on June 30, 1992 when the Stewart ease was decided. Movant argues that it was, and that pursuant to Stewart the motion court erred in denying his Rule 29.13 motion.

Movant contends that his Rule 29.13 motion was filed within thirty days, as allowed by the Rule, and therefore his judgment and sentence did not become final until ten days after his motion was denied. In his brief, he argues:

Rule 30.01(a) requires “the notice of appeal to be filed no later than ten days after the judgment or order appealed from becomes final.” If the trial court has the authority to set aside a judgment upon motion of the defendant on the grounds of the sufficiency of the information, pursuant to Rule 29.-13(a), the judgment cannot be “final” until the defendant’s timely motion to set aside judgment is ruled on.

The relief Movant seeks is the avoidance of the judgment and sentence. A judgment in a criminal case, however, becomes final for purposes of appeal when sentence is entered, State v. Lynch, 679 S.W.2d 858, 860 (Mo. banc 1984), and an appeal must be filed within ten days thereafter. State ex rel. Wagner v. Ruddy, 582 S.W.2d 692, 693 (Mo. banc 1979). The same time limit applies to those eases where an appeal is permitted from a guilty plea.³ State v. Werbin, 597 S.W.2d 663, 664 (Mo.App.1980).

In the instant case, Movant did not appeal from the judgment and sentence within ten days after they were entered. His right to appeal had, therefore, expired when the Stewart case was decided. This court has previously held that, under similar circumstances, a case is not pending, and the retrospective application of the Stewart decision is not authorized. Hawkins v. State, 854 S.W.2d 606, 607 (Mo.App.1993). See also Winkler v. State, 856 S.W.2d 910, 911 (Mo.App.1993). The same result applies to the case at bar.

Notwithstanding the authorities discussed above, Movant seems to argue that a case does not become final until authorized motions which may have an effect on the conviction have been filed and ruled on. This court has not given that effect to Rule 24.035 motions filed after the time for direct appeal has expired.⁴ See Hawkins v. State, 854 S.W.2d at 607; Gleason v. State, 851 S.W.2d 51, 52 (Mo.App.1993). See also Winkler v. State, supra, in which no direct appeal was taken within the time allowed, and retrospective application of Stewart was denied where that issue was raised in a motion seeking a nunc pro tunc order to vacate the felony conviction. Under these decisions, the effect of authorized posteonviction motions filed after the time allowed for direct appeal has not been to revive and make “pending” cases which were final and in which there were no pending issues for adjudication when the Stewart case was decided. We decline Movant’s request to find a meaningful distinction between those decisions and the instant case.

Movant cites Tate v. State, 846 S.W.2d 236 (Mo.App.1993), wherein this court reversed, vacated the sentence, and remanded the case to the trial court for sentencing as a Class A misdemeanor by reason of State v. Stewart. As recognized in Hawkins v. State, 864 S.W.2d at 608, the question of retroactivity was not raised in the Tate case. In both the Hawkins case and the instant case, the retro-activity of State v. Stewart is directly in issue. Consistent with Hawkins, we hold that this ease was not “pending” when State v. Stewart was decided and that the motion court did not err in denying Movant’s Rule 29.13 motion.

The order appealed from is therefore affirmed.

MONTGOMERY, P.J., concurs. PREWITT, J., dissents and files ...... dissentmg opimon.

1 . All references to statutes are to RSMo 1986, V.A.M.S.

2 . All references to rules are to Missouri Rules of Court, V.A.M.R.

3 . Insufficiency of the charge is one basis upon which a defendant may appeal after entering a guilty plea. State v. Gist, 800 S.W.2d 94, 96 (Mo.App.1990).

4 .We recognize there are distinctions between motions filed pursuant to Rule 29.13 and those under Rule 24.035. Under Rule 24.035, however, the court is authorized to grant relief to a person who has pleaded guilty to a felony if the judgment or sentence imposed violates the law or if the sentence was in excess of the maximum authorized.