text:
    Jonathan R. SHUMAKER, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
    No. WD 64656.
    Missouri Court of Appeals, Western District.
    Sept. 13, 2005.

      Stephanie Davis-Swiseher, Nevada, MO, for respondent.
    Jeremiah W. (Jay) Nixon, Attorney General, James A. Chenault, III, Special Assistant Attorney General, Jefferson City, MO, for appellant.
    Before HOWARD, P.J., SMITH, C.J., and NEWTON, J.
   VICTOR C. HOWARD, Presiding Judge.

Jonathan R. Shumaker’s driving privileges were revoked pursuant to section 577.041 for his refusal to submit to a breath analysis test. On April 28, 2004, Shumaker filed a petition in the Circuit Court of Vernon County seeking an order permanently restraining the revocation of his driving privileges. After a hearing held on July 12, 2004, the trial court found that the Director of Revenue (“the Director”) did not prove that Shumaker operated the motor vehicle in question while intoxicated. Thus, the trial court entered a judgment ordering Shumaker’s license reinstated and permanently restraining and enjoining the Director from revoking Shumaker’s driving privileges.

On appeal from the trial court’s judgment, the Director claims that the trial court erred in setting aside the revocation of Shumaker’s driving privileges, because the uncontroverted evidence established that the arresting officer had reasonable grounds to believe that Shumaker had been driving while intoxicated. For the reasons below, we reverse and remand.

Background

On April 17, 2004, Shumaker was involved in a one-car, non-injury accident on Route W, north of the Nevada city limits. The Nevada Police Department’s radio log indicated that they received a call at 8:03 p.m. informing them that Shumaker was leaving the AM Vet’s bar in an intoxicated condition. The police department was advised of Shumaker’s accident at 8:22 p.m., and Officer Anders of the Nevada Police Department arrived at the scene of the accident at 8:29 p.m.

Corporal James Wilde (“Trooper Wilde”) of the Missouri State Highway Patrol was notified of the accident at approximately 8:40 p.m., and he arrived at the scene at approximately 8:49 p.m. Officer Anders already had Shumaker in handcuffs on the ground next to a white Ford Ranger pickup truck when Trooper Wilde arrived. Officer Anders indicated to Trooper Wilde that Shumaker would not follow his instructions and had attempted to leave the scene, at which point Shumaker was handcuffed.

Trooper Wilde removed the handcuffs and asked Shumaker what had happened, at which point Shumaker indicated that he had swerved to miss a deer. Trooper Wilde detected an odor of intoxicating beverages on Shumaker’s breath, and Shu-maker indicated that he had drunk one or two beers. Shumaker then agreed to perform a series of field sobriety tests.

Trooper Wilde’s Alcohol Influence Report (AIR) pertaining to Shumaker was admitted into evidence at the hearing on Shumaker’s petition. The AIR reflects that Shumaker performed: a horizontal gaze nystagmus test, a fínger-to-nose test, a Rhomburg internal balance test, counting backwards, and a portable breath test. Shumaker had difficulty following the directions during the horizontal gaze nystag-mus test, but he eventually displayed all six indications of being intoxicated. Shu-maker had difficulty following the directions during the fínger-to-nose test, and he missed the tip of his nose on all attempts. During the Rhomburg internal balance test, Shumaker swayed back and forth and from side to side, and he did not correctly estimate the time duration of the test. Shumaker could not correctly count backwards from 42 to 32, and he blew “well over .08” on the portable breath test. Based on his observations and Shumaker’s statements, Trooper Wilde placed Shu-maker under arrest for driving while intoxicated, read him his Miranda rights, and transported him to the Vernon County Sheriffs Department.

At the Sheriffs Department, Shumaker agreed to take a breath test, but failed to give a valid sample on both attempts. Trooper Wilde explained to Shumaker that he needed to blow continuously until told to stop. During the first attempt, Shu-maker put the entire mouthpiece in his mouth. Shumaker would blow for a short time, stop, and then continue by blowing around the mouthpiece. This resulted in the first invalid sample. Before the second attempt, Trooper Wilde explained to Shumaker that he should only put the tip of the mouthpiece in his mouth and blow through it like a straw. Shumaker again put the entire mouthpiece in his mouth and blew around it, resulting in a second invalid sample. Trooper Wilde considered Shu-maker to have refused the breath test.

When questioned at the Vernon County Sheriffs Department, Shumaker claimed to have been at the accident scene for one hour before anyone had arrived, and he stated that he drank two beers during this time. Shumaker indicated that he also drank one beer at AM Vet’s between 5:00 and 5:30 p.m. Shumaker said that it was dark when he started driving, so he had to use his headlights. Trooper Wilde checked with radio dispatch and was advised that sunset was at approximately 7:51 p.m. that day.

Shumaker subpoenaed both Officer An-ders and Trooper Wilde for the hearing on his petition. However, Officer Anders did not appear, and, although Trooper Wilde appeared, he did not testify because the trial court entered judgment prior to testimony being heard. Trooper Wilde’s AIR was admitted into evidence at the hearing. The trial court found that the Director failed to prove that Shumaker was driving while intoxicated because no corroborating evidence was presented that Shumaker was in fact driving the vehicle. The trial court stated on the record that Shumaker’s statement, indicating that he was driving the truck, was not sufficient on its own; the statement needed to be corroborated by other evidence in accordance with the rule provided in Kansas City v. Verstraete, 481 S.W.2d 615, 616-17 (Mo.App.1972). Accordingly, the trial court entered its judgment reinstating Shumaker’s driving privileges and granting the permanent injunction.

Standard of Review

We will sustain the trial court’s judgment “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Discussion

The Director claims that the trial court erred in setting aside the revocation of Shumaker’s driving privileges, because the revocation was proper, in that the un-controverted evidence established that Trooper Wilde had reasonable grounds to believe that Shumaker had been driving while intoxicated.

Section 577.020.1 provides in relevant part:

Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 577.020 to 577.041, a chemical test or tests of the person’s breath ... for the purpose of determining the alcohol or drug content of the person’s blood pursuant to the following circumstances:
(1) If the person is arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition^]

Refusal to submit to any test allowed pursuant to section 577.020 results in the revocation of the person’s license. § 577.041.1. “If a person’s license has been revoked because of the person’s refusal to submit to a chemical test, such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred.” § 577.041.4. At a hearing held on a petition filed pursuant to section 577.041.4, the Director has the burden of establishing a prima facie case that (1) “the person was arrested or stopped,” (2) the officer “had [reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition,” and (3) “the person refused to submit to the test.” Id. If the trial court determines that one of the three elements has not been established, “it is required to order the reinstatement of driving privileges.” Berry v. Dir. of Revenue, 885 S.W.2d 326, 328 (Mo. banc 1994). If the Director makes a prima facie case, the driver has the burden to rebut the elements. Hamor v. Dir. of Revenue, 153 S.W.3d 869, 872 (Mo.App. E.D.2004).

At the hearing on Shumaker’s petition, the trial court found that the Director failed to prove by sufficient evidence that Shumaker was driving because there must be some evidence to corroborate Shumaker’s statements in order to prove that he was driving. By its specific reference to Verstraete, supra, the trial court appears to be applying the “corpus delicti” rule by requiring that Shumaker’s statements be corroborated by independent proof. However, Verstraete involved a criminal proceeding, and we have previously held that this rule of evidence in criminal cases does not apply to administrative driver’s license proceedings. Tolen v. Mo. Dep’t of Revenue, 564 S.W.2d 601, 602 (Mo.App.1978); Tuggle v. Dir. of Revenue, 727 S.W.2d 168, 169 (Mo.App. W.D.1987). In administrative proceedings, the trial court may admit and rely on the driver’s “extrajudicial statement to prove that police officers had reasonable grounds to believe that a suspect had operated his motor vehicle while intoxicated” without independent proof of the corpus delicti. Tuggle, 727 S.W.2d at 169. The trial court erroneously interpreted and misapplied the law. Shumaker’s statements that he was driving, without corroboration, could be sufficient to prove that element of the Director’s prima facie case.

Also, under section 577.041.4(2)(a), the Director must prove that Trooper Wilde “had reasonable grounds to believe that [Shumaker] was driving a motor vehicle while in an intoxicated or drugged condition.” The Director does not, as the trial court implied, have to prove that Shumaker was in fact driving.

The Director presented sufficient evidence to prove that Trooper Wilde had reasonable grounds to believe that Shu-maker was driving a motor vehicle while intoxicated. As evidenced by the AIR, police were advised that Shumaker was leaving the AM Vet’s bar in an intoxicated condition and, shortly thereafter, that Shu-maker had been in an accident. When Trooper Wilde arrived on the scene, approximately twenty-seven minutes after the Nevada police were advised of the accident, Shumaker was in handcuffs sitting next to a white Ford Ranger pickup truck. Shumaker and Officer Anders were the only people at the scene of the accident. Trooper Wilde confirmed Shumaker’s identity and asked him what had happened. Shumaker replied that he had swerved to miss a deer. Trooper Wilde noticed the odor of intoxicants and asked Shumaker if he had been drinking. Shu-maker replied that he had. Shumaker performed poorly on several field sobriety tests. Based on Shumaker’s statements and actions, Trooper Wilde arrested him for driving while intoxicated.

Shumaker also contends that the Director failed to meet its burden because Officer Anders was the arresting officer, not Trooper Wilde, and there was no evidence that Officer Anders reasonably believed that Shumaker was driving while intoxicated. This argument lacks merit. Even though it was Officer Anders who initially arrested Shumaker, Trooper Wilde retained him in custody and performed all of the procedural steps to arrest him for driving while intoxicated. Thus, Trooper Wilde became the arresting officer within the meaning of section 577.041. See Chapman v. McNeil, 740 S.W.2d 701, 703 (Mo.App. S.D.1987) (finding that a highway patrol officer, who “performed the procedural steps outlined in § 577.041,” was the arresting officer within the meaning of section 577.041, even if the defendant had already been stopped and his movements controlled by a deputy sheriff on the scene).

Conclusion

The trial court erroneously declared and misapplied the law by reinstating Shumaker’s driving privileges. The Director established a prima facie case under section 577.041.4 that: (1) Shumaker was arrested or stopped; (2) Trooper Wilde had reasonable grounds to believe that Shumaker was driving a motor vehicle while in an intoxicated condition; and (3) Shumaker refused to submit to the test. Thus, the trial court’s judgment is reversed. Because Shumaker was not afforded the opportunity to rebut the Director’s prima facie case, we remand for a new hearing.

SMITH, C.J., and NEWTON, J., concur.

      . Statutory references are to RSMo Cum. Supp.2004.


source: Caselaw Access Project

author: RONALD R. HOLLIGER, Presiding Judge.

license: Public Domain

text:
    Shannon STUBBS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64571.
    Missouri Court of Appeals, Western District.
    Sept. 13, 2005.

      Andrew Allen Schroeder, Appellate Defender Office, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Jefferson City, Shaun Mackelprang and Dora Fichter, Office of Attorney General, Jefferson City, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

Shannon Stubbs appeals the circuit court’s denial, without a hearing, of his Rule 24.035 motion for post-conviction relief (PCR) from his guilty-plea conviction for attempt to receive stolen property, a class D felony. Relying on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Mr. Stubbs’s sole point on appeal is that his attorney provided ineffective assistance by promising him he would receive substance-abuse treatment in prison if he pled guilty, impinging the requirement of State v. Roll, 942 S.W.2d 370 (Mo. banc 1997), that a guilty plea be knowing and voluntary. The motion court concluded that any belief Mr. Stubbs had that he was guaranteed substance-abuse treatment became an unreasonable belief after he read and signed the plea petition.

Because the record clearly refutes Mr. Stubbs’s contention, the motion court did not err in denying an evidentiary hearing. Affirmed.

Facts

Mr. Stubbs was apprehended on a parole warrant for felony non-support of his child. The arresting officers found Mr. Stubbs in possession of stolen property and Stubbs pled guilty to attempt to receive stolen property. At the guilty plea proceeding, Mr. Stubbs testified, among other things, that he understood the judge would impose punishment for the charge to which Mr. Stubbs pled guilty, the range of punishment the charge allowed, and that probation was not guaranteed. He testified that the full extent of the plea agreement encompassed dropping other charges in exchange for the plea. Mr. Stubbs answered “no” to the question whether any other, undisclosed promise or assurance had caused him to plead guilty. After full disclosure of his rights and a full opportunity to elect to go to trial, Mr. Stubbs pled guilty.

At the subsequent sentencing, Mr. Stubbs, through his attorney, requested probation and agreed to any restrictions, including drug treatment, if probation were granted. Mr. Stubbs also asserted, through his attorney, that he had his drug problem “under control.” The motion court judge raised the possibility of drug treatment in prison, saying, “All of that [review of Mr. Stubbs’s history] is getting me closer to wanting to explore a treatment program of some sort. Because that wasn’t recommended and none of this got discussed when you [the prosecutor] were up, I wanted you to have ... a fair opportunity to argue against it.”

After extensive discussion among Mr. Stubbs, his attorney, the prosecutor, the probation officer, and the sheriff about the problems of getting Mr. Stubbs into treatment, the court pronounced sentence. The court initially discussed a four year sentence, including a recommendation for drug treatment. But the court opted to sentence Mr. Stubbs to three years instead of four when the contemplated drug-treatment looked uncertain to occur for reasons not a part of the record. The sentencing court then gave Mr. Stubbs a chance to revoke his plea and elect to go to trial. Near the close of the sentencing hearing, with full knowledge of his sentence and that treatment was uncertain, Mr. Stubbs said he was satisfied with his attorney’s performance and did not wish to revoke his plea.

Mr. Stubbs moved for post-conviction relief under Rule 24.035, alleging ineffective assistance of counsel on grounds that his attorney promised him drug treatment if he pled guilty. In denying relief without a hearing, the motion court concluded, “Any belief [Mr. Stubbs] had from conversation with his attorney that he was guaranteed [substance-abuse treatment] became an unreasonable belief after he read and signed the plea petition.”

Discussion

This court reviews the motion court decision for clear error. Rule 24.035(k). Clear error may be found where “the appellate court is left with the definite and firm impression that a mistake has been made.” Roll, 942 S.W.2d at 375. To prevail on a Sixth Amendment claim of ineffective assistance of counsel, a movant must show both (1) trial counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Roll, 942 S.W.2d at 374-75. In the motion court, Mr. Stubbs had to prove his claim for relief by a preponderance of the evidence. Rule 24.035(f). This court need not decide both parts of the Strickland test if it decides one part has not been satisfied. Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

The issue here is whether Mr. Stubbs was entitled to an evidentiary hearing on his PCR motion. “If the [motion] court shall determine the motion and the files and records of the case conclusively show that movant is entitled to no relief, a hearing shall not be held.” Rule 24.035(h). To merit a hearing, “(1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant.” Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997).

In a guilty plea case, “in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). “If conviction results from a guilty plea, any claim of ineffective assistance of counsel is immaterial except to the extent that it impinges the voluntariness and knowledge with which the plea was made.” Roll, 942 S.W.2d at 375. “When a movant for post-conviction relief claims he made his guilty plea involuntarily because counsel misinformed him, the test applied is whether the movant’s belief was reasonable.” Haskett v. State, 152 S.W.3d 906, 910 (Mo.App.2005) (quoting Krider v. State, 44 S.W.3d 850, 857 (Mo.App.2001)). “Statements made by the defendant during sentencing refute ineffective assistance of counsel claims if the questions and responses are ‘specific enough to refute conclusively the movant’s allegations.’ ” Johnson v. State, 921 S.W.2d 48, 51 (Mo.App.1996) (quoting State v. Driver, 912 S.W.2d 52, 56 (Mo. banc 1995)).

Mr. Stubbs’s statements at sentencing conclusively refute his ineffective assistance of counsel claim. At the end of the sentencing hearing, -with full knowledge of his sentence and the uncertainty of receiving drug treatment — and a renewed opportunity to elect to go to trial rather than plead guilty — Mr. Stubbs persisted in his guilty plea. Thus Mr. Stubbs fails to satisfy the prejudice requirement that “but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366.

Even if Mr. Stubbs had not had the second chance to elect a trial, the motion court rightly concluded that the record in the plea hearing conclusively refuted Mr. Stubbs’s claim of ineffective assistance of counsel. At the plea hearing, the court thoroughly interrogated Mr. Stubbs regarding his understanding of the consequences of his plea, and he testified that no undisclosed agreement or promise had induced his guilty plea. Nothing prior to Mr. Stubbs’s PCR motion suggests he even considered drug treatment as a condition of his guilty plea. The plea hearing did not discuss drug treatment at all. Later, at sentencing, Mr. Stubbs asserted, through his attorney, that he had his drug problem “under control.” This assertion was aimed at securing parole, and stands in contrast to his subsequent claim that he sought drug treatment as a condition of his guilty plea. The sentencing transcript suggests that drug treatment in prison was the court’s idea. The motion court judge said, “All of that [review of Mr. Stubbs’s history] is getting me closer to wanting to explore a treatment program of some sort. Because that wasn’t recommended and none of this got discussed when you [the prosecutor] were up, I wanted you to have ... a fair opportunity to argue against it.” (Emphasis added.) Thus the record refutes that Mr. Stubbs actively sought treatment, much less relied on treatment as a condition of his guilty plea. We find no clear error in the motion court’s conclusion that, even if counsel had made promises to Mr. Stubbs, “[a]ny belief [Mr. Stubbs] had from conversation -with his attorney that he was guaranteed [substance-abuse treatment] became an unreasonable belief after he read and signed the plea petition.”

Because the record conclusively refutes Mr. Stubbs’s claim that counsel induced the plea agreement by promising drug treatment, no evidentiary hearing on the motion was required, and no relief on grounds of ineffective assistance is warranted. Affirmed.

ROBERT G. ULRICH, Judge, and JOSEPH M. ELLIS, Judge, concur.


author: EDWIN H. SMITH, Chief Judge.

text:
    STATE of Missouri, Respondent, v. John Otis BRUSHWOOD, Appellant.
    No. WD 64564.
    Missouri Court of Appeals, Western District.
    Sept. 13, 2005.

      Dwight K. Scroggins, Jr., Prosecuting Attorney, Kate Stigall, Assistant Prosecuting Attorney, St. Joseph, MO, for respondent.
    Ronald R. Holliday and Jason C. Soper, St. Joseph, MO, for appellant.
    Before SMITH, C.J., and ULRICH and BRECKENRIDGE, JJ.
   EDWIN H. SMITH, Chief Judge.

John Otis Brushwood appeals the judgment of his conviction, after a bench trial in the Circuit Court of Buchanan County, of the class B misdemeanor of property damage in the second degree, § 569.120, for vandalizing a motor vehicle titled in the name of his wife, from whom he was legally separated at the time. As a result of his conviction, the appellant received a sentence of three months in the Buchanan County Jail, the execution of which was suspended, with the appellant being placed on probation for one year.

The appellant raises one point on appeal. He claims that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because the State failed to prove, in violation of due process, an essential element of the offense of which he was charged and convicted, second-degree property damage, that he had damaged the property “of another,” in that he had a marital interest in the motor vehicle he was charged with damaging.

We affirm.

Facts

The appellant and Rowena Ruth Brushwood were married on September 27,1977. Three children were born of the marriage. In addition, Rowena was the stepmother of the appellant’s child of another marriage, Jonathan Brushwood. Rowena filed for divorce on November 7, 2003, in the Circuit Court of Buchanan County. An order of legal separation was entered on April 27, 2004.

In February of 2002, more than a year before Rowena filed for divorce, she helped Jonathan shop for a car. Ultimately, they agreed that he would purchase a 1997 Chevrolet Blazer. Rowena assumed that Jonathan would obtain a loan to purchase the vehicle, and she would co-sign it. However, when Jonathan was unable to obtain a loan in his name, Rowena obtained one in her name. The Blazer was titled in her name, with title to pass to Jonathan in the event of her death. The loan payments were automatically deducted from Rowena’s individual checking account. Jonathan maintained insurance on the vehicle and reimbursed Rowena for many of the loan payments. Rowena occasionally drove the Blazer, which was initially kept at Jonathan’s residence and was used primarily by him.

At some point, before Rowena filed for divorce in November of 2003, Jonathan stopped making payments to Rowena on the Blazer. Consequently, Rowena obtained insurance on the vehicle, which then went largely unused. On January 18, 2004, Rowena allowed Jason, who is the parties’ son, to drive the Blazer, which broke down. As a result, the Blazer was towed to Tom’s Garage in St. Joseph. The owner of the garage, Tom Helton, determined that the problem was with the fuel pump, caused by a large chunk of ice in the gas tank. Helton concluded that someone had poured water in the Blazer’s gas tank. In that regard, sometime later, Helton ran into the appellant at a grocery store and the two talked about the Blazer’s fuel pump problems. In the course of the conversation, the appellant told Helton that he should not be surprised if he found water in the gas tank.

On February 11, 2004, the appellant was charged by information in the Circuit Court of Buchanan County with property damage in the second degree. On April 16, 2004, he was also charged by information with victim tampei’ing and violating an order of protection previously obtained by Rowena, after he allegedly called her at her job and tried to dissuade her from cooperating in the prosecution of the property damage charge. The charges were consolidated for trial.

Following a bench trial on September 7, 2004, the appellant was found guilty of property damage, but was found not guilty of victim tampering and violating an order of protection. He was sentenced on the same date to three months in the Buchanan County Jail on the property damage charge. However, the trial court suspended the execution of his sentence and placed him on probation for one year.

This appeal followed.

Standard of Review

In a jury-tried case, our review of a trial court’s ruling on a motion for judgment of acquittal is for a submissible case. State v. Davis, 71 S.W.3d 659, 664 (Mo.App.2002). However, in a judge-tried case, as here, where the trier of fact and the arbiter of the law are one in the same, we review to determine whether there was sufficient evidence from which the trial court could have found the defendant guilty beyond a reasonable doubt. Id. In making that determination, we accept as true all evidence tending to prove guilt together with all reasonable inferences that support the finding and ignore all contrary evidence and inferences. Id. We do not weigh the evidence or decide the credibility of witnesses, but defer to the trial court. Id.

I.

In his sole point on appeal, the appellant claims that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because the State failed to prove, in violation of due process, an essential element of the offense of which he was charged and convicted, second-degree property damage, that he had damaged the property “of another,” in that he had a marital interest in the motor vehicle he was charged with damaging. We disagree.

To convict a defendant of a criminal offense, the State is required, as a matter of due process, to prove beyond a reasonable doubt each and every element of the charged offense. State v. Sellars, 98 S.W.3d 124, 127 (Mo.App.2003). Here, the State charged that, in violation of § 569.120.1(1), the appellant damaged the Blazer by pouring water into the gas tank. Section 569.120.1(1) provides that a person commits the crime of property damage in the second degree if he “knowingly damages property of another.” (Emphasis added.) Hence, to convict the appellant of property damage in the second degree, as charged under § 569.120.1(1), the State was required to prove, inter alia, that the property allegedly damaged, the Blazer, was “property of another.” State v. Green, 643 S.W.2d 1, 2 (Mo.App.1982).

The appellant claims that he did not damage the “property of another,” so as to allow a conviction for violating § 569.120.1(1), in that he had an undisputed marital property interest in the Blazer at the time he damaged it. Specifically, he contends in his brief:

Appellant was charged with damaging a 1997 Chevrolet Blazer by pouring five gallons of water into the gas tank. However, the evidence is undisputed that this vehicle was marital property, and the Appellant and the victim were involved in a pending action for dissolution of marriage or legal separation at the time of the alleged offense. Approximately three months after the alleged offense, this vehicle was divided by a valid judgment of Legal Separation.
As stated in State v. Crenshaw, 41 Mo.App. 24, 1890 WL 1857 (Mo.App.1890) at p. 24, “the statute denounces the acts therein named as criminal only when they are done to the property of another in which the person charged has no interest, and this want of interest in the property is the very gravamen of the offense.” One cannot be convicted of damaging his own property unless it is done for the purpose of defrauding an insurer. Section 569.120, RSMo.1986.
The trial court erred in failing to grant Defendant’s Motion for Acquittal at the Close of all the Evidence.

Even assuming, arguendo, that the appellant had a marital interest in the vehicle when it was damaged, his claim of error would not be correct, and he would not be entitled to the appellate relief he seeks, unless he is correct in his assertion that such an interest caused the vehicle not to be “property of another.” Hence, the determination of the appellant’s claim turns on an interpretation of the phrase “property of another” in § 569.120.1(1).

In interpreting statutes, we are to ascertain the intent of the legislature, giving the language used its plain and ordinary meaning. Pavlica v. Dir. of Revenue, 71 S.W.3d 186, 189 (Mo.App.2002). Where the legislative intent is made evident by giving the language employed in the statute its plain and ordinary meaning, we are without authority to read into the statute an intent, which is contrary thereto. Id. When the legislative intent cannot be ascertained from the language of the statute, by giving it its plain and ordinary meaning, the statute is considered ambiguous and only then can the rules of statutory construction be applied. Id.

When a term or phrase is defined in the statute that is being interpreted, that definition is controlling. State ex rel. Nixon v. Estes, 108 S.W.3d 795, 798 (Mo.App.2003). The phrase, “of another,” in § 569.120.1(1), describing the alleged damaged property, is defined in § 569.010, which reads, in pertinent part: “As used in this chapter the following terms mean: ... (3) ‘Of another’, property is that ‘of another’ if any natural person, corporation, partnership, association, governmental subdivision or instrumentality, other than the actor, has a possessory or proprietary interest therein[.]” Under the express terms of this definition, for purposes of second-degree property damage, in violation of § 569.120, if a natural person, other than the actor, “has a possessory or proprietary interest” in the alleged damaged property, that property is considered “property of another.” While this definition clearly requires that someone other than the actor have an interest in the property, it does not require that that person have the only interest, and conversely, it does not require that the actor have no interest, as the appellant contends. Thus, in order for the State to show that the Blazer was “property of another,” it only had to show that someone other than the appellant had a possessory or proprietary interest in it. The appellant concedes that Rowena had such an interest.

Our interpretation of “property of another,” for purposes of § 569.120, is in accord with other jurisdictions and legal authorities that have interpreted this phrase in a comparable context. See State v. Superior Court, 188 Ariz. 372, 936 P.2d 558, 559 (Ct.App.1997) (noting the general rule that, when interpreting criminal damage statutes without a precise definition of “property of another,” the term included any property in which the defendant had anything less than exclusive ownership); State v. Coria, 146 Wash.2d 631, 48 P.3d 980, 983-84 (2002); State v. Webb, 64 Wash.App. 480, 824 P.2d 1257, 1263 (1992) (holding that the phrase “property of another,” as used in defining the comparable offense of malicious mischief, includes property co-owned by the defendant, or in which the defendant shares an interest); Model Penal Code § 220.3 cmt. 3 (1980) (stating that, in statutes defining the offense of criminal mischief, the phrase “property of another” should be defined “to include property ‘in which any person other than the actor has an interest in which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property’ ”). The rationale behind this consensus interpretation is well-stated in People v. Kheyfets, 174 Misc.2d 516, 665 N.Y.S.2d 802, 805 (Sup.1997):

When a husband and wife own property together, they are often deemed to have a joint tenancy in the property. ‘Joint tenancy is a tenancy of two or more persons whose interests are equal in every respect.’ Each concurrently owns all of the undivided whole and has a nonexclusive right to possess that undivided whole. Thus, when a husband destroys property that he owns jointly with his wife, not only does he destroy his property, which he may have a right to destroy, but he simultaneously destroys his wife’s undivided one hundred percent interest in the property, which he does not have a right to destroy. Therefore, when a husband destroys marital property, he destroys the property of another and violates this element of criminal mischief statutes.

The lone case cited by the appellant in support of his position, State v. Crenshaw, 41 Mo.App. 24 (1890), is distinguishable from the case at bar. Crenshaw involved an interpretation of § 1358 of the Revised Statutes of 1879, which made it a crime for a person to willfully and maliciously damage residential or commercial buildings “in which such person has no interest.” 41 Mo.App. at 25. There, the St. Louis Court of Appeals held that an indictment, which charged a defendant with violating § 1358, was defective because it failed to charge that the defendant had no interest in the damaged property. Id. at 26-27. In Crenshaw, the statute in question explicitly excluded property in which the defendant had any interest. Id. Section 569.120 does not, such that Crenshaw is not controlling.

Point denied.

Conclusion

The judgment of the circuit court, convicting the appellant of property damage in the second degree, § 569.120, is affirmed.

ULRICH and BRECKENRIDGE, JJ., concur.

      . All statutory references are to RSMo 2000, unless otherwise indicated.


author: PER CURIAM.

text:
    In the Interest of A.L.B., Plaintiff, K.A.B. (Mother), Appellant, L.M.R. (Father), Defendant, v. Juvenile Officer, Respondent.
    No. WD 65164.
    Missouri Court of Appeals, Western District.
    Sept. 13, 2005.
    Kathryn L. Mills, Liberty, MO, for K.A.B.
    John R. Shank, Jr., Kansas City, MO, for Respondent.
    Sherri L. Edwards, Gladstone, MO, Attorney and Guardian for A.L.B.

      Before: SMART, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Mother appeals from a judgment terminating her parental rights under Section 211.447.4(3), RSMo 2000. Mother contends none of the four factors which the trial court must consider in termination were supported by clear, cogent, and convincing evidence. Affirmed. Rule 84.16(b).


text:
    Timothy L. HENKE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85115.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 13, 2005.
    Irene C. Karns, Assistant Public Defender, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Timothy L. Henke (“Movant”) appeals from the judgment of the Circuit Court of Warren County denying his Rule 29.15 motion for post-conviction relief. In his appeal, Movant contends that the trial court erred when it failed to find that Movant’s trial counsel rendered ineffective assistance of counsel. Movant specifically contends that trial counsel was ineffective for failing to (1) call as a witness Judge Sutherland, who presided over Movant’s arraignment, to testify at trial about injuries to Movant’s mouth he observed during Movant’s arraignment and (2) move for a change of judge in order to obtain a trial judge other than Judge Sutherland. Mov-ant claims Judge Sutherland’s testimony corroborated his assertion that he was assaulted by the police and acted in self-defense.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. Helmig v. State, 42 S.W.3d 658, 665-66 (Mo.App. E.D.2001). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

We affirm the award pursuant to Rule 84.16(b).

      . All rule references are to Mo. Rules Civ. Pro 2004 unless otherwise indicated.


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    David McLAURIN, Respondent, v. Lisa McLAURIN, Appellant.
    No. ED 85084.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 13, 2005.

      Raymond Howard, St. Louis, MO, for appellant.
    Robert E. Faerber, Clayton, MO, for respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Lisa McLaurin (“Wife”), appeals from the judgment of the Circuit Court of the City of St. Louis, which dissolved her marriage to Respondent, David McLaurin (“Husband”). That judgment divided the parties’ property and ordered Wife to pay $800.00 in attorney’s fees to Husband. Furthermore, the court found that the only child born of the marriage between Husband and Wife was emancipated. Thus, the court made no provision for child support. We affirm.

Husband and Wife were married on September 4, 1982. The parties separated in or about 1990. However, Husband’s first amended petition for dissolution of marriage was not filed until June 24, 2004. Wife works in banquet sales for Glen Echo Country Club earning $9.50 per hour. At the time of the trial on July 21, 2004, Husband had recently been laid off from T & T Demolition.

David Wayne McLaurin, Jr. (“Child”), born February 21, 1985, was the only child born of the marriage. After graduating from high school, Child attempted to enroll in Forest Park Community College in the fall of 2003. However, because a financial aid award was delayed, he was unable to do so. The financial aid was received in October. Child was enrolled for ten credit hours for the 2004 spring semester, and Child began attending courses in January. Wife alleges that at some point in the spring semester, Child slipped on ice, fell, and fractured his right hand. Thereafter, he withdrew from his spring classes and also did not attend summer classes. Child registered for twelve credit hours for the 2004 fall semester.

After a bench trial, the court entered a judgment dissolving the marriage of Husband and Wife. No maintenance was awarded to either party. The court found that Child was emancipated. Thus, the court made no provision for child support. This appeal followed.

In Wife’s sole point on appeal, she argues that the trial court erred in declaring Child to be emancipated on the basis that he did not continually pursue higher education. She claims that Child was not emancipated because his temporary inability to attend college classes was due to a temporary physical disability.

On appeal, a trial court’s ruling on child support is affirmed unless it is not supported by substantial evidence, it is contrary to the weight of the evidence, or it incorrectly applies or states the law. In re Marriage of Kohring, 999 S.W.2d 228, 234 (Mo.banc 1999). We will defer to a trial court’s determinations of credibility. Henry v. Henry, 886 S.W.2d 172, 174 (Mo. App. E.D.1994). We view the evidence and all permissible inferences therefrom in the light most favorable to the trial court’s decision, and disregard all contrary evidence and inferences. Id.

Section 452.340.5, RSMo 2000 provides that the parental support obligation shall continue if “the child is enrolled in and attending a secondary school program....” Section 452.340.5. This parental support obligation shall continue, “if the child continues to attend and progresses toward completion of said program, until the child completes such program or reaches age twenty-one, whichever first occurs.” Section 452.340.5 (emphasis added). However, the continuous attendance requirement may be waived where each of the following factors is present: 1) the interruption is temporary; 2) there is a clear intent to re-enroll; and 3) there are manifest circumstances which prevented the child’s continuous enrollment. Kasten v. Frenz, 109 S.W.3d 210, 213 (Mo.App4. E.D.2003). Manifest circumstances are those situations which are beyond the child’s control. Id. Missouri courts have invoked the manifest circumstances exception when a child’s inability to attend classes stems from illness, physical disability, or a parent’s refusal to pay child support. Id. However, where there is insufficient evidence that a child’s medical condition prevented attendance, a waiver of the continuous attendance requirement is not justified. See Draper v. Draper, 982 S.W.2d 289, 294-95 (Mo.App. W.D.1998). When applying section 452.340.5, a trial court enjoys discretion in finding a child emancipated or unemancipated. Zalmanoff v. Zalmanoff, 862 S.W.2d 941, 945 (Mo.App. E.D.1993).

In this case, Child did not continuously attend college. He did not complete the 2004 spring semester. Mother alleges attendance was not continuous due to a temporary physical disability. However, the testimony as to the severity of Child’s injury was scant. Wife testified that Child fractured his dominant hand and, as a result, was unable to write. Nonetheless, the trial court was not obligated to believe her testimony that the injury occurred or, in the alternative, that it was serious enough to prevent Child from attending classes. There was no testimony that Child attempted and was unable to make accommodations in order to continue attending classes. The trial court’s decision was further justified because Wife introduced no medical records or other documentation of Child’s injury into the record. See Draper, 982 S.W.2d at 295. Thus, considering the dearth of evidence presented, the trial court did not err in declaring Child emancipated. Point denied.

Based on the foregoing, we affirm the judgment of the trial court.

GEORGE W. DRAPER, III and KENNETH ROMINES, JJ., concur.

      . All statutory references are to RSMo 2000 unless otherwise indicated.


text:
    STATE of Missouri, Respondent, v. Kenneth F. BUTLER, Appellant.
    No. ED 85077.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 13, 2005.

      Daniel J. Briegel, Briegel, Davis & Arand, LLC, Union, MO, for appellant.
    Amanda L. Grellner, Osage County Prosecuting Attorney, Linn, MO, for respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Kenneth F. Butler (Defendant) appeals from the trial court’s judgment and sentence imposed after a jury found him guilty of: 1) one misdemeanor count of fishing while his license was suspended, revoked, or denied, in violation of Section 252.241 (Count I); one misdemeanor count of pursuing fish by illegal method, in violation of Section 252.040 (Count II); and one misdemeanor count of resisting a lawful detention, in violation of Section 575.150 (Count III). The trial court sentenced Defendant: 1) on Count I to pay a fine of $500 and to serve a term of 30 days in the county jail, to be served concurrently with the terms in Counts II and III; 2) on Count II to pay a fine of $500 and to serve a term of 30 days in the county jail, to be served consecutively with the term in Count III; and 3) on Count III to pay a fine of $500 and to serve a term of 30 days in the county jail, to be served consecutively with the term in Count II. This appeal follows.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).

      . All subsequent statutory references are to RSMo 2000, unless otherwise noted.


text:
    Ralph H. GREEN, Defendant/Movant, v. STATE of Missouri, Plaintiff/Respondent.
    No. ED 85027.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 13, 2005.
    Gwenda Renee Robinson, District Defender, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Ralph H. Green (Movant) appeals from the judgment denying his Rule 29.15 motion for post-conviction relief (motion) following an evidentiary hearing.

We affirmed Movant’s conviction and sentence for five counts of first-degree robbery, in violation of Section 569.020, RSMO 2000, in State v. Green, 97 S.W.3d 534 (Mo.App. E.D.2003). This appeal follows the motion court’s findings of fact and conclusions of law denying Movant’s motion following an evidentiary hearing.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claims of error to be without merit. The motion court’s findings and conclusions are not clearly erroneous. Rule 29.15(k). No error of law appears. An extended opinion would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b).

The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    In the Interest of J.C.J., J.E.J., J.A.L.K., Minors, Kelly Racheal Keller Jones, Appellant.
    No. ED 85373.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 13, 2005.
    Steven W. Neimeyer, Clayton, MO, for appellant.
    Allison M. Wolff, Clayton, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

K.K.J. (“mother”) appeals from the judgment of the trial court terminating her parental rights to J.C.J., born on February 15, 1993 J.E.J., born on September 25, 1997, and J.A.L.K., born on June 26, 1989. Mother contends that the trial court erred in terminating her parental rights in that there was insufficient clear, cogent and convincing evidence to support its findings under section 211.447.4(2) RSMo (2000) and under section 211.447.4(3).

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


author: GLENN A. NORTON, Judge.

text:
    Cornell PRICE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85208.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 13, 2005.

      Deborah Daniels, Lisa M. Kennedy (co-counsel), Jefferson City, MO, for respondent.

      Timothy J. Forneris, St. Louis, MO, for appellant.
   OPINION

GLENN A. NORTON, Judge.

Cornell Price appeals the judgment denying his Rule 24.035 motion without an evidentiary hearing. We reverse and remand for an evidentiary hearing.

I. BACKGROUND

Price was charged with possession of heroin and with possession of drug paraphernalia with the intent to use. At the plea hearing, Price indicated that he understood he had the right to a trial and the right to have a lawyer represent him throughout a trial, which he understood he was giving up when he pled guilty. Price admitted the facts set forth by the State and indicated to the court that no one had made any threats in order to get him to plead guilty and that he was pleading guilty of his own freewill. Price stated that he was “always” satisfied with the services of his attorney, that his attorney did everything Price wanted him to do and that he had sufficient time to talk with his attorney.

The court accepted Price’s pleas and, based on his admission that he had previously pled guilty to a felony and been convicted by a jury of another felony, found that Price was a prior and persistent offender as alleged in the information. After sentencing, Price again indicated that he was more than satisfied with his attorney.

Price filed a motion for post-conviction relief under Rule 24.035 and requested an evidentiary hearing. He claimed that there was no evidence that he had been represented or had waived his right to counsel in the prior conviction proceedings and therefore he could not be sentenced as a prior and persistent offender. He also claimed that counsel was ineffective for coercing him to plead guilty in this case because he could not pay counsel’s legal fees for trial. Price asserted that counsel’s financial interest in getting paid for his trial work conflicted with Price’s interest in taking the case to trial. He alleged that he would testify at a hearing that counsel had told Price he would not take his case to trial until his legal fees were paid and that when Price told counsel of his financial situation, counsel coerced Price to plead guilty. Price stated that counsel pressured him to plead guilty because Price could not afford a trial. Price contended that this created an actual conflict of interest and that he would not have pled guilty if counsel had not coerced him to do so.

The motion court found that Price’s claim regarding his status as a prior and persistent offender was without merit because he admitted that status. The court also found that Price’s statements at the plea hearing refuted his allegations that counsel was ineffective. The court concluded that the record showed that Price’s plea was voluntarily and knowingly made with an understanding of the consequences and denied the motion without a hearing. Price appeals.

II. DISCUSSION

We review the denial of a post-conviction motion under Rule 24.035 to determine whether the motion court’s findings of fact and conclusions of law were clearly erroneous. Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). The motion court’s findings and conclusions will be deemed clearly erroneous only if, after reviewing the record, this Court is left with the definite and firm impression that a mistake has been made. Id. Price argues that the court erred by denying his ineffective assistance of counsel claim without a hearing because his responses to the court’s inquiries at the plea hearing were not specific enough to conclusively refute his allegations. We agree.

A movant is entitled to an evi-dentiary hearing on a motion for post-conviction relief only if: (1) he alleges facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of prejudiced the movant. Simmons v. State, 100 S.W.3d 143, 145 (Mo.App. E.D.2003). No hearing will be held if the record of the case conclusively shows that the movant is entitled to no relief. Rule 24.035(h). If the guilty plea proceedings directly refute that the movant’s plea was involuntary, then he is not entitled to an evidentiary hearing. Cain v. State, 859 S.W.2d 715, 717 (Mo.App. E.D.1993). To justify the denial of an evidentiary hearing on an ineffective assistance of counsel claim, the record must be “specific enough to refute conclusively the movant’s allegation.” State v. Driver, 912 S.W.2d 52, 56 (Mo. banc 1995). A negative response to a routine inquiry regarding whether any promises or threats had been made to induce a guilty plea is too general to encompass all possible statements by counsel to his client. Shackleford v. State, 51 S.W.3d 125, 128 (Mo.App. W.D.2001) (allegation of affirmative act of misinformation by counsel not refuted by statement that no promises or threats made to induce guilty plea); but see Martin v. State, 78 S.W.3d 197, 200 (Mo.App. W.D.2002) (allegation that counsel promised certain sentence refuted by statement that no promises had been made).

Price’s responses to the court’s routine inquiries at the plea hearing were too general to conclusively refute the allegation that counsel specifically told Price that he would not take his case to trial until his legal fees were paid. Price’s admission that no threats were made and that he was pleading guilty of his own free will does not refute that counsel made this particular statement. See Lomax v. State, 163 S.W.3d 561, 564 (Mo.App. E.D.2005); see also Shackleford, 51 S.W.3d at 128. Nor do Price’s expressions of satisfaction with counsel conclusively refute the claims in his motion. See Lomax, 163 S.W.3d at 564; see also Royston v. State, 948 S.W.2d 454, 458 (Mo.App. W.D.1997). Moreover, although Price indicated that he understood he had the right to a trial and the right to have a lawyer represent him throughout a trial, the record does not contain any evidence that Price understood that he had the right to conflict-free representation. See Lomax, 163 S.W.3d at 564.

The facts alleged in Price’s motion, if true, would entitle him to relief. To prevail on a claim of ineffective assistance of counsel founded on a conflict of interest, the movant must show that an actual conflict of interest adversely affected counsel’s performance. Helmig v. State, 42 S.W.3d 658, 680 (Mo.App. E.D. 2001) (citing State v. Chandler, 698 S.W.2d 844, 848 (Mo. banc 1985)); see also Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). “In order to prove a conflict of interest, something must have been done by counsel or something must have been forgone by counsel and lost to defendant, which was detrimental to the interests of defendant and advantageous to another.” Helmig, 42 S.W.3d at 680 (internal quotation marks omitted). If the movant proves that counsel had an actual conflict of interest affecting counsel’s performance, then prejudice is presumed. State v. Griddine, 75 S.W.3d 741, 745 (Mo.App. W.D.2002).

Although a defendant’s failure to pay his legal fees does not necessarily give rise to a conflict of interest, the allegations in this motion show that Price’s inability to pay created a divergence of interests between Price and counsel that affected counsel’s performance. See Lomax, 163 S.W.3d at 564. According to Price, counsel told him that he would not take the case to trial until his legal fees were paid. Because Price could not afford to pay, counsel allegedly pursued his own financial interest by coercing Price to plead guilty instead. Counsel’s alleged conduct was detrimental to Price’s interest in taking his case to trial in that Price claimed he would not have pleaded guilty if counsel had not pressured him to do so because he could not afford a trial. Counsel’s alleged conduct was advantageous to counsel’s own interest in getting paid for his trial work.

Price alleged facts, unrefuted by the record, which, if true, warrant relief and demonstrate prejudice. Thus, Price was entitled to an evidentiary hearing on his ineffective assistance of counsel claim. The denial of his motion without that hearing was clear error. Point II is granted. Because the evidentiary hearing could result in the vacation of Price’s convictions, we do not address his argument in Point I relating to the propriety of sentencing him as a prior and persistent offender.

III. CONCLUSION

The judgment is reversed, and the case is remanded for an evidentiary hearing.

CLIFFORD H. AHRENS, P.J. and NANNETTE A. BAKER, J. concurring.


author: SHERRI B. SULLIVAN, J.

text:
    Christopher L. WILLIAMS, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 85489.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 13, 2005.

      Maleaner Harvey, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Ronald S. Ribaudo, Assistant Attorney General, Jefferson City, MO, for respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Christopher L. Williams (Movant) appeals from the motion court’s denial of his motion to set aside his motion for voluntary dismissal and dismissal of his pro se motion for post-conviction relief. We dismiss the appeal for lack of jurisdiction.

Factual and Procedural Background

A jury found Movant guilty of robbery in the first degree, in violation of Section 569.020, armed criminal action, in violation of Section 571.015, and burglary in the first degree, in violation of Section 569.160. The trial court entered a judgment in accordance with the jury verdict and sentenced Movant as a prior offender to concurrent terms of life imprisonment, thirty-five years’ imprisonment, and fifteen years’ imprisonment, respectively.

Movant appealed his convictions and sentences, which this Court affirmed in a per curiam order. State v. Williams, 131 S.W.3d 853 (Mo.App. E.D.2004).

On July 7, 2004, Movant filed a pro se motion for post-conviction relief under Rule 29.15. On July 20, the motion court appointed counsel to represent Movant. On August 17, counsel entered her appearance and requested additional time in which to file an amended motion for post-conviction relief, which the motion court granted, giving Movant until October 18 to file an amended motion.

On October 18, Movant, by and through counsel, filed a notice of voluntary dismissal of his pro se motion for post-conviction relief. On October 25, Movant, by and through counsel, filed a motion to set aside the notice of voluntary dismissal and to issue findings of fact and conclusions of law on Movant’s pro se motion for post-conviction relief. The motion to set aside, filed at Movant’s request, stated that counsel had investigated all allegations, including those raised in Movant’s pro se motion, and concluded that there were no cognizable post-conviction claims under Rule 29.15 to raise before the motion court, and therefore, on October 14, counsel discussed her findings with Movant, who agreed the appropriate disposition was to move for dismissal. Along with the motion to set aside, counsel filed a Statement in Lieu of Filing an Amended Motion requesting the motion court to review all claims asserted in Movant’s pro se motion for post-conviction relief and to issue findings of fact and conclusions of law.

On October 26, the motion court “granted” Movant’s notice of voluntary dismissal and dismissed his pro se motion for post-conviction relief without prejudice and “denied” Movant’s motion to set aside without issuing findings of fact or conclusions of law and without an evidentiary hearing.

Discussion

Movant argues that the motion court clearly erred in denying his motion to set aside the notice of voluntary dismissal and in dismissing his pro se motion for post-conviction relief without issuing findings of fact and conclusions of law.

Preliminarily, we address two jurisdictional issues raised by the State. First, the State argues that we do not have jurisdiction to hear Movant’s appeal because Movant’s pro se motion for post-conviction relief was untimely filed. We disagree. Rule 29.15(b) provides in relevant part:

If an appeal of the judgment or sentence sought to be vacated, set aside or corrected was taken, the motion shall be filed within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence.

We issued the mandate affirming the judgment and sentence entered against Movant on May 17, 2004. Movant filed his pro se motion for post-conviction relief on July 7, 2004, within 90 days of our mandate. Thus, the pro se motion was timely filed. The State incorrectly cites April 6, 2004 as the date of mandate. However, this date was the date that we issued the opinion, not the date of mandate.

Second, the State argues that we do not have jurisdiction to hear Movant’s appeal because we do not have a final judgment before us. We agree with this argument. Once a plaintiff voluntarily dismisses a claim prior to the introduction of evidence, it is as if the suit were never brought. Curators of Univ. of Missouri v. St. Charles County, 985 S.W.2d 810, 814 (Mo.App. E.D.1998). No appeal can be taken from a voluntary dismissal. Id. Thus, we do not have jurisdiction to hear this portion of Movant’s appeal. Additionally, the trial court may take no further steps as to a voluntarily dismissed action, and any step attempted is viewed as a nullity. Id. The trial court loses jurisdiction as of the date of dismissal. Id. The trial court has no power to reinstate the case, even the next day upon a plaintiffs motion. Liberman v. Liberman, 844 S.W.2d 79, 80 (Mo.App. E.D.1992). Therefore, the motion court’s “denial” of Mov-ant’s motion to set aside is a nullity because the court did not have jurisdiction to rule on the motion. Our jurisdiction is contingent upon the trial court’s having jurisdiction in the first instance. Kieffer v. Niemeyer, 113 S.W.3d 300, 301 (Mo.App. E.D.2003). Consequently, we do not have jurisdiction to hear this portion of Mov-ant’s appeal either. Thus, because no final judgment exists from which Movant can appeal, we dismiss his appeal for lack of jurisdiction.

Conclusion

The appeal is dismissed for lack of jurisdiction.

NANNETTE A. BAKER, P.J., and ROBERT G. DOWD, JR., J., concur.

      . All statutory references are to RSMo 2000, unless otherwise indicated.

      . All rule references are to Mo. R.Crim. P. 2005, unless otherwise indicated.

      . Generally, an opinion cannot be mandated until the time for filing all post-disposition motions has passed or, if a post-disposition motion(s) has been filed, until all post-disposition motions have been ruled on.

      . We note, however, that Movant cannot file another motion for post-conviction relief. Civil Procedure Rule 67.01 states that a dismissal without prejudice permits a party to bring another civil action for the same cause, unless the civil action is "otherwise barred.” Even though the docket sheet indicates that his pro se motion for post-conviction relief was dismissed "without prejudice,” a motion for post-conviction relief filed by Movant now would be untimely under Rule 29.15(b) and thus would be "otherwise barred.” A post-conviction relief motion is a civil action. Roberson v. State, 140 S.W.3d 634, 636 (Mo.App. W.D.2004); Rule 29.15(a).


text:
    Alvery HORTIZ, Appellant, v. STATE of Missouri, Respondent.
    No. ED 83859.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 13, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Alvery Hortiz (“movant”) appeals the judgment of the motion court denying his motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15 on the merits after an evidentiary hearing. In his motion, movant claims he was denied effective assistance of counsel because his trial counsel failed to move to strike two jurors for cause, and because counsel failed to call two witnesses at trial.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Sherron WILSON, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85527.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 13, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfossr, Asst. Atty. Gen, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

Movant Sherron Wilson appeals the motion court’s order denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We have reviewed the parties’ briefs and the record on appeal and find no clear error. Rule 24.035(k). An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.

The motion court’s order denying Mov-ant’s Rule 24.035 motion for post-conviction relief is affirmed. Rule 84.16(b)(2).


text:
    The CONTINENTAL INSURANCE COMPANY, et al, Appellants, v. MALLINCKRODT INC., et al, Respondents.
    No. ED 85503.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 13, 2005.
    Alfred L. Buchanan, William D. Ellison, Michaels & May, P.C., Chicago, IL, Joe Whisler, Cooling <& Herbers, P.C., Kansas City, MO, for Appellants.
    Ann K. Covington, Bryan Cave LLP, St. Louis, MO, Troy B. Froderman, Bryan Cave LLP, Phoenix, AZ, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellants, Continental Insurance Company, et al (collectively “Continental”), appeal the judgment of the Circuit Court of St. Louis County granting Respondents’, Mallinckrodt Inc., et al (collectively “Mal-linckrodt”), motion to dismiss or stay and/or motion to dismiss or transfer Continental’s declaratory judgment action. Continental’s declaratory judgment action sought a declaration regarding their rights and obligations with respect to insurance coverage for past and future asbestos and environmental claims asserted against Mallinckrodt. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

      . The full list of Appellants in this case consists of: London Market Insurers, Traveler’s Indemnity, The Continental Insurance Company, Certain Underwriters at Lloyd’s London, Maryland Casualty Company, Continental Casualty Company, Columbia Casualty Company, Fidelity and Casualty Company of New York, Employers Mutual Casualty Company, and Traveler's Casualty & Surety Company.


author: GLENN A. NORTON, C.J.

text:
    Boaz RAFAELI, Plaintiff/Appellant, v. Vivian DELIA, Defendant/Respondent.
    No. ED 85944.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 13, 2005.
    William B. Langenbacher, Clayton, MO, for respondent.
    Boaz Rafaeli, Clayton, MO, Appellant acting pro se.
   GLENN A. NORTON, C.J.

Boaz Rafaeli (Appellant) appeals from the trial court’s order dismissing his petition without prejudice. Because there is no final, appealable judgment, the appeal is dismissed.

On October 28, 2003, Appellant filed suit against Vivian Delia (Respondent) seeking to recover personal property from her residence. In his petition, Appellant asserted that he and Respondent lived together in June 2003 and Appellant had moved his belongings into Respondent’s home. Shortly after he moved in, Appellant asserts that Respondent took steps to keep him out of the home and he has been unable to retrieve his personal belongings. His petition set forth his allegations in four separate counts: bailment, negligence, conversion, and fraud. Appellant later attempted to amend his petition to add additional parties and counts, but the court denied him leave to amend. Respondent answered the petition and on August 24, 2004, she filed a counterclaim against Appellant, asserting that he had filed a lis pendens against her real property. In Count I of her counterclaim, she sought recovery for slander to title and in Count II she sought a declaratory judgment and/or affirmative injunction to terminate the lis pendens.

After a torturous history with the trial court, involving multiple motions and requests for sanctions from both sides, the court heard various motions on January 12, 2005, including Respondent’s motion for sanctions, motion to strike, and motion for judgment on the pleadings. The court entered an order on that day finding Appellant in contempt of court for failing to comply with the court’s order of December 13, 2004 to provide his address to the court. The court dismissed Appellant’s petition in its entirety without prejudice, then granted Respondent’s motion for sanctions and ordered Appellant to pay attorneys’ fees of $500 to Respondent. After Appellant’s motion for reconsideration was denied, he appealed to this Court.

After the case was on appeal, this Court questioned its jurisdiction to consider the “order” because it was not denominated a “judgment” as required by Rule 74.01(a). On July 5, 2005, the trial court entered a “judgment” in accordance with Rule 74.01(a). On July 22, 2005, the trial court amended its July 5, 2005 judgment to state that “Final Judgment is entered on plaintiffs petition in its entirety, that plaintiffs causes of action are each dismissed without prejudice and that defendant’s counterclaim in the above matter remains pending.” This judgment makes it clear that Respondent’s counterclaim is pending in the trial court, which again raises the issue of this Court’s jurisdiction to consider Appellant’s appeal.

An appellate court only has jurisdiction over a judgment if it is final, disposing of all parties and all issues in the case, leaving nothing for future determination. American Family Mut. Ins. Co. v. Lindley, 112 S.W.3d 449, 451 (Mo.App. E.D.2003). Any adjudication of fewer than all claims or all parties does not terminate the action, which makes it subject to revision by the trial court at any time until final judgment. Goodson v. National Sports and Recreation, Inc., 136 S.W.3d 98, 99 (Mo.App. E.D.2004). If the trial court issues a judgment which does not dispose of all of the issues in a case, an appeal is allowed only if the trial court also expressly finds that “there is no just reason for delay.” Rule 74.01(b).

Here, the trial court’s judgment addressed only Appellant’s petition and did not address Respondent’s counterclaim, which is currently set for trial on January 30, 2006. The trial court made no finding under Rule 74.01(b) that there is no just reason for delay in Appellant’s appeal. Therefore, the appeal must be dismissed for lack of a final judgment.

The appeal is dismissed without prejudice for lack of a final, appealable judgment.

KATHIANNE KNAUP CRANE, J. and BOOKER T. SHAW, J., concur.


text:
    Linda POOLE, Employee-Claimant/Respondent, v. INTERNATIONAL LIGHTING MFG. CO., Employer/Respondent, and American Protection Ins. Co., Insurer/Respondent, and Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Appellant/Additional Party.
    No. ED 85749.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 13, 2005.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Carol L. Barnard, St. Louis, MO, for the Second Injury Fund.
    Wagenfeld Levine, Martin Klug, St. Louis, MO, for Respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

The Treasurer of the State of Missouri as Custodian of the Second Injury Fund (SIF) appeals from the final award of the Labor and Industrial Relations Commission (Commission) affirming the award of the administrative law judge (ALJ), as modified by the Commission, and finding: 1) International Lighting Manufacturing Corporation and American Protection Insurance Company (Employer) hable for Linda Poole’s (Claimant) future medical aid and treatment, including home modifications and other assistive devices, necessary to cure and reheve Claimant from the effects of her last injury; and 2) SIF liable for Claimant’s permanent total disabihty benefits for the remainder of Claimant’s life, because Claimant’s preexisting disabilities combined with her last injury resulted in a condition that caused Claimant to be unemployable. We affirm the award of the Commission.

We have reviewed the briefs of the parties and the record on appeal. The Commission’s award is supported by sufficient and competent evidence in the record as a whole. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth our reasons for the order affirming the Commission’s award pursuant to Rule 84.16(b).

      . Employer does not dispute that Claimant suffered a work-related injury and does not appeal the Commission’s finding of liability against Employer for Claimant’s permanent partial disability benefits and its modification of the ALJ's award to include all present and future medical aid and treatment, including home modifications and other assistive devices, necessary to cure and relieve Claimant of the effects of her last injury.

      . Employer’s motion to dismiss itself as a party to this appeal is denied.


text:
    Dianne VOGT, Respondent, v. ANHEUSER BUSCH COMPANIES, INC., Appellant.
    No. ED 85714.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 13, 2005.
    Todd D. Hilliker, Lisa K. Scanlan, Attorneys at Law, St. Louis, MO, for Appellant.
    Mark F. Haywood, Attorney at Law, Clayton, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, Anheuser Busch Companies, Inc. (“Employer”), appeals the final award entered by the Labor and Industrial Relations Commission (“the Commission”). The Commission reversed the decision of Administrative Law Judge Edwin J. Koh-ner (“the ALJ”) and found Employer to be liable to Respondent, Dianne Vogt (“Claimant”), for $5,954.10 in medical expenses, and $24,198.02 in permanent partial disability benefits. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.


text:
    Joseph BRASHEARS, Plaintiff/Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant/Respondent.
    No. ED 85523.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 13, 2005.
    Randolph E. Schum, Edwardsville, IL, John Boylan, Kathryn M. Kohn, Minneapolis, MN, for appellant.
    Kevin Lee Fritz, Dean A. Stark, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Joseph Brashears (“Brashears”) appeals the decision of the Circuit Court of the City of St. Louis, the Honorable John J. Riley, granting summary judgment for Union Pacific Railroad Company (“Union Pacific”). The record reflects, and we find, that Brashears failed to comply with Supreme Court Rule 74.04(c)(2), and further find that Union Pacific was due judgment as a matter of law. No error of law appears and an opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The judgment is AFFIRMED. Rule 84.16(b).


author: GLENN A. NORTON, Chief Judge.

text:
    Iris WILLIAMS, Claimant/Appellant, v. WALGREEN CO. ILLINOIS, and Division of Employment Security, Respondents.
    No. ED 86518.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 13, 2005.
    Thomas D. Boggs, St. Louis, MO, for respondent Walgreens.
    Iris G. Williams, St. Louis, MO, appellant acting pro se.
    Cynthia A. Quetsch, Jefferson City, MO, for respondent Labor and Industrial Relations Commission.
   GLENN A. NORTON, Chief Judge.

Iris Williams (Claimant) appeals from the Labor and Industrial Relations Commission (Commission) decision dismissing her application for review as untimely. We dismiss the appeal for lack of jurisdiction.

A deputy of the Division of Employment Security (Division) determined that Claimant was disqualified from unemployment benefits because she was discharged for misconduct connected with work. Claimant appealed to the Appeals Tribunal. After a hearing March 31, 2005, the Appeals Tribunal affirmed the deputy’s decision. On April 8, 2005, the Appeals Tribunal issued and mailed its written decision to Claimant. At the bottom of its decision, the Appeals Tribunal sets forth “Appeal Rights,” which advises Claimant that if she disagrees with the decision, she may file an application for review to the Labor and Industrial Relations Commission. The information further provides that the application for review must be filed within thirty (30) days from the date of the decision.

Claimant filed an application for review with the Commission on May 17, 2005. The Commission dismissed the application for review, concluding it was untimely under section 288.200, RSMo 2000. Claimant now appeals to this Court.

Section 288.200.1, RSMo 2000, provides that a claimant has only thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Here, the Appeals Tribunal certified that it mailed its decision to Claimant on April 8, 2005. Therefore, Claimant’s application for review to the Commission was due thirty days later. Section 288.200.1. Claimant faxed her application for review to the Commission on May 17, 2005, which is outside the thirty-day time limit.

This Court issued an order directing Claimant to show cause why her appeal should not be dismissed. In her response to this Court, Claimant asserts that the attorney for Employer in her related case with the Equal Employment Opportunity Commission (EEOC) told her that he would “postpone the hearing with unemployment.” She claims that her late filing of the application for review to the Commission was due to the attorney’s false and misleading information.

Claimant has attached to her response a portion of an agreement signed by her and the Employer’s EEOC attorney. Claimant signed the agreement on May 20, 2005, while Employer’s attorney signed it on May 31, 2005. Paragraph Five of the agreement provides that “Subsequent to the date of this Agreement, [Employer] agrees not to oppose any unemployment claim or appeal of such claim by [Claimant].” The Employer’s attorney did not sign this agreement until May 31, 2005, well after Claimant’s application for review was due. In fact, she had already filed the application for review on May 17, 2005, before she even signed the agreement. In her letter, she states that Employers’ attorney stated on April 29, 2005 that he would postpone the hearing on the unemployment. Yet, the hearing had occurred on March 31, 2005 and the Appeals Tribunal issued its decision on April 8, 2005. The information provided to Claimant with the Appeals Tribunal’s decision clearly informed Claimant that she had to file an application for review within thirty days.

Moreover, even if the lateness of Claimant’s application for review is understandable, there are unfortunately no provisions in the unemployment statutes that would provide an exception for Claimant’s untimely filing. The unemployment statutes do not provide any mechanism for filing a late application for review with the Commission. Crowden v. General Sign Co., 133 S.W.3d 562, 563 (Mo.App.E.D.2004). Therefore, despite Claimant’s reasons, the untimely filing of the application for review is fatal. The timely fifing of an application for review in an unemployment case is jurisdictional and requires strict compliance. Guebert v. Professional Installers, Inc., 128 S.W.3d 615, 615 (Mo.App.E.D.2004). Claimant’s failure to file a timely application for review divests the Commission, and ultimately this Court, of jurisdiction. Moore v. Northview Village, Inc., 125 S.W.3d 347, 348 (Mo.App. E.D.2004).

The Claimant’s appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE, J., and BOOKER T. SHAW, J., concur.


text:
    STATE of Missouri, Respondent, v. Anthony T. WILSON, Appellant.
    No. ED 84627.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 13, 2005.
    Timothy Forneris, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Anthony Wilson (“defendant”) appeals from the judgment entered following the verdicts of a jury, which convicted him of murder in the second degree in violation of section 565.021 RSMo (2000) and robbery in the second degree in violation of section 569.030 RSMo (2000). The trial court sentenced defendant to life imprisonment for the second degree murder conviction and to fifteen years’ imprisonment for the robbery conviction with the two terms to run consecutively. Defendant contends that the trial court erred by abusing its discretion in admitting a number of autopsy photographs into evidence that he contends were more prejudicial than probative, and which he asserts served only to inflame the passions of the jury and to divert the jury.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    Mark C. BERGMANN, Appellant, v. Barbara J. BERGMANN, Respondent.
    No. ED 84736.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 13, 2005.

      Joseph J. Porzenski, St. Charles, MO, for appellant.
    Janet E. Tomich, St. Charles, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Mark Christopher Bergmann appeals from a judgment granting Barbara Jo Bergmann her request to relocate the residence of their minor children to the State of Arkansas. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


author: GARY M. GAERTNER, Presiding Judge.

text:
    Deborah ANDRAE n/k/a Debbie Andrae, Appellant, v. David ANDRAE, Respondent.
    No. ED 85639.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 13, 2005.

      Patricia K. Susi, Janet Catalona, The Catalona Law Firm, L.L.C., Attorneys at Law, Clayton, MO, for appellant.
    Greg L. Roberts, The Roberts Law Firm, P.C., Chesterfield, MO, for respondent.
   GARY M. GAERTNER, Presiding Judge.

Appellant, Deborah Andrae n/k/a Debbie Andrae (“Wife”), appeals the judgment of the Circuit Court of St. Louis County sustaining Respondent’s, David Andrae (“Husband”), nunc pro tunc motion. The judgment nunc pro tunc ordered that the amended judgment of dissolution of marriage entered on May 18, 2004 be amended to correct the judgment to read that all uninsured health expenses of the minor children shall be paid 50% by Husband and 50% by Wife. We reverse and remand.

Husband and Wife were married on August 27,1982. Wife works as an instructor for software applications, and she is employed by Insituform Technologies, Inc. Husband is employed by the Rockwood School District. His job entails management of in-house construction jobs for the Rockwood School District. Two children (Aarica Andrae, born December 29, 1989, and Jaime Andrae, born June 29, 1993) were born of the marriage. On June 12, 2002, Wife filed her petition for dissolution of the marriage.

A bench trial was conducted in October of 2003. On January 20, 2004, the court entered its judgment of dissolution of marriage. The court found that it was in the best interests of the children that Husband and Wife share joint legal and physical custody of the two children. The court further found that Wife’s income was $5,208 per month and Husband’s income was $4,666 per month. Wife was ordered to pay Husband $401 per month for the support of the two children. Husband was ordered to provide and maintain health insurance for the children.

On February 18, 2004, Wife filed a motion for a new trial or, in the alternative, to amend the judgment. On May 18, 2004, the court entered a judgment sustaining Wife’s motion to amend with regard to the division of property, but denying Wife’s request for reconsideration and amendment of the child support. On October 29, 2004, Husband filed a “Motion Nunc Pro Tunc” alleging that the court had omitted from its judgment, either by clerical error or mistake, a provision “concerning the allocation of the unreimbursed medical, dental, orthodontic, counseling and various other expenses of the minor children.” On November 17, 2004, the court entered a judgment sustaining Husband’s nunc pro tunc motion. The judgment nunc pro tunc ordered that the amended judgment of dissolution of marriage entered on May 18, 2004 be amended to correct the judgment to read that “[a]ll health expenses incurred on behalf of the children and not paid by the health benefit plan shall be paid 50% by [Husband] and 50% by [Wife].” This appeal by Wife followed.

In reviewing this bench-tried case, we must affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. McCallum v. McCallum, 128 S.W.3d 62, 65 (Mo.App. E.D.2003).

In her only point on appeal, Wife argues the trial court erred in sustaining Husband’s nunc pro tunc motion and ordering the parties to share equally in all health expenses of the children not paid by the health benefit plan.

Rule 74.06(a) provides, in pertinent part, that: “[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party....”

The purpose of a nunc pro tunc order is to correct clerical omissions or mistakes so that the record speaks the truth by evidencing an act done or a judgment actually rendered at a prior time but not carried into or properly recorded in the record. Around the World Importing v. Mercantile, 795 S.W.2d 85, 88 (Mo.App. E.D.1990). An order nunc pro tunc cannot be utilized to correct judicial inadvertence, omission, oversight or error, or to conform to what the court intended to do but did not do. Brunton v. Floyd Withers, Inc., 716 S.W.2d 823, 826 (Mo.App. E.D.1986).

We presume that the judgment entered is not the result of clerical error, but, rather, is the judgment the court actually rendered. Pfeifer v. Pfeifer, 788 S.W.2d 780, 781 (Mo.App.E.D.1990). The respondent must provide this court with competent evidence demonstrating that a different judgment was in fact entered. Id. Furthermore, a clerical error may be corrected only if there is a writing in the record which provides evidence of the judgment as actually rendered as in comparison to the judgment entered. Roedel v. Roedel, 788 S.W.2d 788, 790 (Mo.App. E.D.1990).

In its judgment sustaining Husband’s nunc pro tunc motion, the court commented that “it was the intent of the court that the medical, dental, orthodontic and counseling expenses of the children also be shared equally because there was no basis to differentiate between the treatment of these expenses and the educational, extraordinary and extracurricular expenses.” (emphasis added).

There is no evidence in the record that would lead this court to conclude that the trial court’s judgment as actually rendered, as opposed to the judgment entered, included a provision indicating that health expenses not covered by the health benefit plan shall be paid 50% by Husband and 50% by Wife. In this case, the nunc pro tunc judgment was not utilized to remedy a clerical error. On the contrary, it is apparent that the trial court attempted to use a nunc pro tunc judgment to correct a judicial oversight or omission. A nunc pro tunc judgment is not the proper means by which a court can amend a judgment so that it includes a provision the court in tended to include in the judgment. Therefore, the court erred in entering its nunc pro tunc judgment, because there was no evidence of a clerical mistake which needed to be corrected. Point granted.

Based on the foregoing, we reverse and remand to the trial court with directions to set aside the nunc pro tunc judgment.

GEORGE W. DRAPER, III and KENNETH ROMINES, JJ., concur.


text:
    Susan M. SLOCUM, Respondent, v. David W. SLOCUM, Appellant.
    No. ED 85565.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 13, 2005.
    The Roach Law Firm, Susan K. Roach, Clayton, MO, for appellant.
    Summers, Compton, Wells & Hamburg, Robert F. Summers, St. Louis, MO, for respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

David W. Slocum appeals from the trial court’s judgment and decree of dissolution of marriage dissolving his marriage to Susan M. Slocum and dividing the parties’ marital property. We affirm.

We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).