Woods v. State

861 S.W.2d 577, 1993 Mo. App. LEXIS 980, 1993 WL 226287
CourtMissouri Court of Appeals
DecidedJune 29, 1993
DocketNo. WD 47037
StatusPublished
Cited by4 cases

This text of 861 S.W.2d 577 (Woods v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Woods v. State, 861 S.W.2d 577, 1993 Mo. App. LEXIS 980, 1993 WL 226287 (Mo. Ct. App. 1993).

Opinion

FENNER, Presiding Judge.

Appellant, Billy Ray Woods, appeals the denial of his Rule 24.035 motion for posteon-vietion relief without an evidentiary hearing. The motion was heard in the Circuit Court of Livingston County, Missouri, and appellant’s request for postconviction relief was denied on September 24, 1992.

The facts relevant to this appeal are as follows: Late in the evening on December 10, 1990, Woods drove to the Chillicothe Police Department to report that he had been robbed. The police reports show that Woods arrived at the police department at approximately 10:53 p.m. to report that he had been robbed at gunpoint by a man named Rick Orona.1

■ The police reports further show that Officers Knouse and Parks obtained permission to search Woods’ car for further evidence of the alleged robbery. During their search, they found marijuana. Officer Parks arrested Woods at approximately 12:05 a.m. for possession of under 35 grams of marijuana, a misdemeanor. Officer Parks read Woods his Miranda rights at approximately 12:07 a.m. While the officers were talking to Woods, they noticed that Woods was intoxicated. Woods was given a breathalyzer test to determine his blood alcohol level at approximately 1:18 a.m. His blood alcohol content was .11 percent. The police reports make no mention of the precise time when Woods was arrested for driving while intoxicated (DWI). Woods claimed that he arrived at the police station at 10:53 that evening and was not arrested for DWI until 1:11 a.m.

Woods was charged by information, filed on January 16, 1991 in Livingston County Circuit Court, with committing the Class D felony of driving while intoxicated in violation of sections 577.010, RSMo 1986, and 577.023, RSMo Supp.1992,2 on December 10, 1990, near the Chillicothe Police Department. The information further alleged that Woods was a prior and persistent offender.

A preliminary hearing had been held on January 7, 1991. Officer Parks testified that he believed that Woods was intoxicated when he arrived at the police station on the evening of December 10, 1990. Officer Parks stated that Woods told him and other officers that he drove from a bar to the police station. Officer Sampsel, who was also at the police station that evening, testified that he noticed that Woods had been drinking and that Woods stated that he had driven his car. Officer Cox, the arresting officer for the DWI charge, testified that Woods displayed the symptoms of alcohol intoxication. He further testified that he arrested Woods for DWI at approximately 12:30 a.m., after Woods was arrested by Officer Parks for possession of marijuana. Officer Cox stated that he read Woods his rights after arresting him and administered the breathalyzer test at 1:18 a.m.

Counsel for Woods filed a motion to suppress the results of the breathalyzer test on [579]*579August 29, 1991. In the motion to suppress, counsel argued that Woods’ arrest for DWI was illegal because the arrest was not made within one and one-half hours after the alleged violation occurred, as required by section 577.039, RSMo 1986.3 A hearing on this motion was held on September 6, 1991. At the hearing, Officer Parks testified that Woods arrived at the police station at approximately 10:53 p.m. on the evening in question. Officer Parks stated that Woods was arrested for possession of marijuana at approximately 12:05 a.m. and was read his Miranda rights at approximately 12:07 a.m. Officer Cox testified that he arrested Woods for DWI “no more than three minutes after” Officer Parks read Woods his Miranda rights, or approximately 12:10 a.m. Woods was read his Miranda rights for the DWI arrest at approximately 1:10 a.m. according to Officer Cox’s testimony and the police report. Officer Cox read Woods his rights under the Implied Consent Statute at approximately 1:11 a.m. Officer Cox acknowledged, however, that there is no indication in the police report that he arrested Woods for DWI at 12:10 a.m.

The trial court found that the testimony of Officer Cox was credible as to his procedures. The court then denied the motion to suppress, finding the credible evidence to indicate that the arrest was made within the one and one-half hour time limit imposed by statute.

On November 18, 1991, Woods pled guilty to the Class D felony of driving while intoxicated in violation of sections 577.010 and 577.023. He admitted that he operated a motor vehicle while in an intoxicated condition. As part of the plea agreement, the prosecutor agreed to dismiss the misdemean- or marijuana charge in connection with the instant case and also a pending DWI charge in a separate case.4 There was to be no binding recommendation as to sentence. The guilty plea was accepted and a presen-tence investigation was ordered.

On January 10,1992, Woods was sentenced as a persistent offender, pursuant to sections 558.016, RSMo Supp.1992, and 557.036.4, RSMo Supp.1992,5 to ten years imprisonment in the Missouri Department of Corrections.

Woods filed a pro se motion to vacate, set aside or correct the judgment or sentence, pursuant to Rule 24.035, on March 6, 1992. As grounds for this motion, Woods contended that there was a breach of the plea agreement, which called for a maximum sentence of five years.

An amended motion to vacate, set aside or correct the judgment and sentence was filed on May 7, 1992, and an evidentiary hearing was requested. The amended motion contained additional allegations.

The trial court entered its findings of fact and conclusions of law on September 24, 1992, denying Woods’ motion and request for an evidentiary hearing. This appeal followed.

We note initially that the 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). 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)).

I.

In his first point on appeal, Woods argues that the motion court clearly erred in denying his postconviction relief motion without an evidentiary hearing in that the trial court lacked jurisdiction to accept appellant’s guilty plea and to impose sentence because appellant was not arrested within one and [580]*580one-half hours after the offense allegedly occurred, in violation of section 577.039.

Section 577.039 provides as follows:

An arrest without a warrant by a law enforcement officer, including a uniformed member of the state highway patrol, for a violation of section 577.010 or 577.012 is lawful whenever the arresting officer has reasonable grounds to believe that the person to be arrested has violated the section, whether or not the violation occurred in the presence of the arresting officer; provided, however, that any such arrest without warrant must be made within one and one-half hours after such claimed violation occurred

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Bluebook (online)
861 S.W.2d 577, 1993 Mo. App. LEXIS 980, 1993 WL 226287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woods-v-state-moctapp-1993.