DocketNumber: Nos. SD 31599, SD 31618
Citation Numbers: 386 S.W.3d 807
Judges: Bates, Burrell, Scott
Filed Date: 9/18/2012
Status: Precedential
Modified Date: 10/2/2021
Charles Etenburn’s first Rule 24.035 post-conviction motion was denied. On appeal, we affirmed the motion court’s ruling. See Etenburn v. State, 341 S.W.3d 737 (Mo.App.2011).
Movant’s point is denied, and the motion court’s denial of Movant’s motion for post-conviction relief is affirmed. Nevertheless, when it is determined in a post-conviction relief case that a written sentence differs materially from the oral pronouncement of sentence, “[a] limited remand is necessary for the trial court to correct the written judgment to reflect the oral pronouncement of sentence.” Hall v. State, 190 S.W.3d 533, 535 (Mo.App.2006); Samuel v. State, 156 S.W.3d 482, 484 (Mo.App.2005); Rule 24.035(j) (motion court may “correct the judgment and sentence as appropriate”). Therefore, while we affirm the motion court’s denial of Movant’s motion for post-conviction relief, we remand the*809 case for the limited purpose to direct the motion court to correct the original written judgment in each of Movant’s three underlying criminal cases to accurately reflect the oral pronouncement of sentence in each. See Hall, 190 S.W.3d at 535.
Id. at 747.
On remand, the motion court corrected the three written judgments as directed. Thereafter, Etenburn filed a second Rule 24.035 post-conviction motion. It alleged, inter alia, that his due process rights had been violated because he had been “resen-tenced” without being personally present. Pursuant to Rule 24.035(0, the motion court denied the second post-conviction motion as successive. This appeal followed.
Etenburn presents two points on appeal. First, he argues that he was denied due process because he was not personally present when he was resenteneed by the motion court. Second, he argues that the motion court was obligated to appoint counsel before dismissing Etenburn’s second Rule 24.035 post-conviction motion.
Point I assumes that Etenburn was resentenced by the motion court.
Etenburn was personally present when the plea court orally pronounced the sentences in his three criminal cases. In the appeal from the denial of Etenburn’s first Rule 24.035 motion, we did not vacate those sentences and remand for resentenc-ing. Instead, we remanded the case for the limited purpose of correcting the written judgments to conform to the court’s oral pronouncement of the sentences. See Etenburn, 341 S.W.3d 737, 747 (Mo.App.2011). Thus, Etenburn was not resen-tenced. See Hight, 841 S.W.2d at 283. The motion court correctly denied Eten-burn’s second Rule 24.035 postconviction motion as successive. See Rule 24.035(Z); Stegmaier v. State, 863 S.W.2d 924, 927 (Mo.App.1993). Point I is denied.
In Point II, Etenburn claims the motion court was obligated to appoint counsel before dismissing his second Rule 24.035 post-conviction motion. We dis
The motion court’s order denying Eten-burn’s successive Rule 24.035 motion is affirmed.
. All references to rules are to Missouri Court Rules (2012).
. We acknowledge that a movant can file a new post-conviction motion to raise issues related to resentencing. See, e.g., Kniest v. State, 133 S.W.3d 70, 72 (Mo.App.2003). Such a motion is not barred as successive by Rule 24.035(Z). Id.
. The appointment of counsel provisions in Rule 29.15(e) and Rule 24.035(e) are identical. Therefore, it is appropriate to rely upon Strickland and Fields in this Rule 24.035 case. See, e.g., Mitchell v. State, 192 S.W.3d 507, 509 n. 3 (Mo.App.2006); Thomas v. State, 180 S.W.3d 50, 53 n. 6 (Mo.App.2005); Kramer v. State, 136 S.W.3d 87, 89 n. 2 (Mo.App.2004).