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

text:
    Tricia A. CARTER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93478.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 31, 2010.

      Jo Ann Rotermund, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Robert J. Bartholomew, Jefferson City, MO, for respondent.
   GARY M. GAERTNER, JR., Presiding Judge.

Introduction

Tricia A. Carter (Movant) appeals from the motion court’s judgment denying, without an evidentiary hearing, her Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence pursuant to Rule 24.035 (Amended Motion). We affirm.

Factual and Procedural Background

Movant was charged by Information with one count of robbery in the first degree, in violation of Section 569.020 (Count I); one count of assault in the first degree, in violation of Section 565.050 (Count III); and two counts of armed criminal action, in violation of Section 571.015 (Counts II and IV). As basis for the robbery count, the Information charged that, at approximately 3:45 p.m. on June 8, 2006, Movant forcibly stole U.S. currency in the possession of Sun McCullough (Victim) at 7913 Page Avenue in St. Louis County, while using and threatening the immediate use of a dangerous instrument against Victim. In connection with the assault count, the Information charged that, at the same date, time and location, Movant knowingly caused serious physical injury to Victim by stabbing her.

Movant entered a blind plea of guilty to all four counts. During her plea hearing, the plea court read in to the record the charges against Movant as follows:

It is charged, ma’am, in Count 1 that you committed the Class A felony of Robbery in the First Degree in that on or about June 8, 2006, at approximately 3:45 p.m., at 7913 Page Avenue, in the County of St. Louis, State of Missouri, you forcibly stole U.S. currency in the possession of Sun McCullough, and in the course thereof, used or threatened the immediate use of a dangerous instrument against Sun McCullough.
In Count 2, it’s charged that you committed the felony of Armed Criminal Action in that on or about June 8, 2006, at approximately 3:45 p.m., at 7913 Page Avenue, in the County of St. Louis, State of Missouri, you committed the felony of Robbery in the First Degree as alleged in Count 1, and you knowingly committed that felony of Robbery in the First Degree by, with and through the use, assistance and aid of a dangerous instrument.
In Count 3, it’s charged that you committed the Class A felony of Assault in the First Degree in that on or about June 8, 2006, at approximately 3:45 p.m., at 7913 Page Avenue, in the County of St. Louis, State of Missouri, you knowingly caused serious physical injury to Sun McCullough by stabbing her.
In Count 4, it’s charged that you committed the felony of Armed Criminal Action in that on or about June 8, 2006, at approximately 3.45 p.m., at 7913 Page Avenue, in the County of St. Louis, State of Missouri, you committed the felony of Assault in the First Degree, as alleged in Count 3, and that you knowingly committed that foregoing felony of Assault in the First Degree by, with and through the use, assistance and aid of a dangerous instrument.

After reading the charges, the plea court informed Movant of the penalty ranges for each charged crime, and then inquired of Movant as follows:

[Court]: To the charges as I’ve read to you, ma’am, do you desire to enter pleas of guilty or not guilty?
[Movant]: Guilty.
[Court]: Are these pleas being entered voluntarily by you of your own free will?
[Movant]: Yes.
[Court]: Has anyone forced you to enter a plea of guilty to any of those charges?
[Movant]: No.
[Court]: Did you in fact do the things I’ve read that it says you did here?
[Movant]: Yes.
[Court]: Is there anything I’ve read that it says you did here that you did not do?
[Movant]: No.
[Court]: Now, [Plea Counsel] has been your attorney in this matter, is that correct?
[Movant]: Yes.
[Court]: Are you satisfied with her representation of you?
[Movant]: Yes.
[Court]: Is there anything about her representation of you with which you are dissatisfied?
[Movant]: No.
[Court]: Is there anything you think she should have done that she hasn’t done?
[Movant]: No.
[Court]: Is there anything you think she should not have done that she did over your objection?
[Movant]: No.
[Court]: Has she put any pressure on you or in any way forced you to enter a plea of guilty to any of these four charges?
[Movant]: No.
[Court]: Has anyone else?
[Movant]: No.
[Court]: Whose decision is it to enter the guilty pleas, ma’am?
[Movant]: Mine.
[Court]: Is that a free and voluntary decision?
[Movant]: Yes.
[Court]: Do you think you have had enough time to discuss the matter with your attorney and anyone else you wanted to talk to before making that decision?
[Movant]: Yes.

After questioning Movant and Plea Counsel concerning Movant’s mental status and informing Movant-of the rights she was waiving by pleading guilty to the charges, the plea court had the State present the facts supporting Movant’s pleas:

[State]: Your Honor, the facts as they would show at trial would be that on the date as listed on the Information, [Mov-ant] entered a shop which the victim owned and was working [sic] at the time. [Movant] made contact with the victim, produced a knife with a blade of approximately eight to nine inches and began stabbing the victim around the head and arms as the victim brought her arms up. After multiple stabbing [sic] the victim, [Movant] then proceeded to ask for money. The victim provided money that was on her. She stabbed her an additional time, and then the victim retrieved money from the cash drawer, provided it to [Movant], and at that time, [Movant] left. There were — according to the facts that we have, there were [sic] more than one time that the victim was stabbed prior to any demand or request for money. Then there was an additional, at least one additional time that [Movant] stabbed the victim after money was provided. All of the stabbings provided injuries to the victim. [Court]: What would your evidence reflect with regard to the injuries to the victim?
[State]: Your Honor, the victim received multiple stab wounds around the face and neck. Excuse me a moment. I’m just pulling out the victim’s medical records. She bled a large amount at the scene. She was. helped by several passersby at the scene and taken immediately from that point out to Barnes-Jewish Hospital and was treated for multiple stab wounds. She was admitted to the emergency room in critical condition after she got to the hospital as a result of multiple stab wounds around the head, neck and arm area.

The plea court ascertained that Movant had heard what the State had indicated its evidence would reflect, and asked Movant if she had anything further she wished to say. The following exchange then occurred:

[Movant]: That is not exactly the way it occurred. I did go in like that, but I did not intend to hurt anyone. I was high on drugs at that time. But I did not just keep repeatedly stabbing this woman after she gave me her money. That is just not the case.
[Court]: Did you stab her before she gave you the money?
[Movant]: When I initially went in there, I more or less — when I grabbed around her neck area, she jerked, and that is how the first wound got to her. I guess with me being high, I just panicked then. I did stab her a couple of times. Then I asked her for the money, and she gave me the money. I really couldn’t tell you how many times because of the condition I was in. But after she gave me the money, I fled the store. I didn’t continue to stab her, but I really don’t know how many times I actually did because I was high, and I think just kind of detached myself from the situation.

Thereafter, the plea court found, based on Movant’s admission to the contents of the Information as supplemented by the State’s recitation of the anticipated evidence against Movant, that Movant was, in fact, guilty beyond a reasonable doubt of the charged felonies. The court sentenced Movant to concurrent terms of twenty-five years’ imprisonment on each count.

Movant filed a pro se Rule 24.035 Motion to Vacate, Set Aside or Correct the Judgment or Sentence. Subsequently, appointed counsel filed an Amended Motion on Movant’s behalf. In her Amended Motion, Movant claimed her pleas were involuntary, unintelligent and unknowing, in that the State failed to establish that she “knowingly” committed the charged crimes due to her drugged state during the assault and robbery. The motion court found that the transcript refuted this claim and denied the motion without an eviden-tiary hearing. This appeal follows.

Standard of Review

Appellate review of a motion court’s ruling on a Rule 24.035 motion is limited to determining whether the motion court’s findings and conclusions are clearly erroneous. Rule 24.035(k); Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). The motion court’s findings and conclusions are clearly erroneous only if, after review of the entire record, the appellate court is left with the definite and firm belief that a mistake has been made. Roberts, 276 S.W.3d at 835.

Discussion

To warrant an evidentiary hearing, Movant’s motion must allege facts, not conclusions, which if true, would warrant relief; the alleged facts must not be refuted by the record; and the matters complained of must have prejudiced the mov-ant. Wilder v. State, 301 S.W.3d 122, 127 (Mo.App.E.D.2010). A movant is not entitled to an evidentiary hearing where the guilty plea proceedings directly refute claims the plea was involuntary. Id.

In her sole point on appeal, Movant argues that the motion court clearly erred in denying her post-conviction motion because an insufficient factual basis existed for her guilty pleas to first-degree robbery, first-degree assault, and two associated armed criminal action charges. Specifically, Movant avers the plea record did not establish that she acted knowingly in robbing and assaulting the victim.

Courts must determine that a factual basis exists for a plea prior to entering judgment upon a defendant’s plea of guilty. Rule 24.02(e); Wilder, 301 S.W.3d at 130. A factual basis for a guilty plea exists when the information clearly charges all the elements of the crime, the nature of the charge is explained to the defendant, and the defendant admits guilt. Wilder, 301 S.W.3d at 130.

Movant argues that she did not act knowingly in robbing and assaulting Victim because she was “high” when she committed the offenses. But evidence that a defendant was in a voluntarily drugged condition is not admissible for the purpose of negating a mental state that is an element of the offense. Section 562.076.3. See State v. Fanning, 939 S.W.2d 941, 944-48 (Mo.App.W.D.1997).

The record reflects that a factual basis existed for Movant’s guilty pleas. “A person commits the crime of robbery in the first degree when he forcibly steals property and in the course thereof he ... (l)[e]auses serious physical injury to any person; or (2)[i]s armed with a deadly weapon; or (3)[u]ses or threatens the immediate use of a dangerous instrument against any person; or (4)[d]isplays or threatens the use of what appears to be a deadly weapon or dangerous instrument.” Section 569.020.1.

The State’s Information clearly charged all elements of robbery in the first degree, namely that Movant forcibly stole U.S. currency in the victim’s possession, and while doing so, used and threatened the immediate use of a dangerous instrument against the victim. Furthermore, during Movant’s plea hearing, the State alleged evidence satisfying the elements of this charged crime. The State asserted that Movant approached Victim at her shop, displayed a knife with a blade of approximately eight to nine inches in length, proceeded to stab Victim around her head and arms multiple times, and then demanded money from Victim. Certainly, a knife with an eight to nine inch blade, under the circumstances in which Movant used it against Victim, constitutes a dangerous instrument. Section 556.061(9) (defining dangerous instrument as any instrument which, under circumstances in which it is used, is readily capable of causing death or other serious physical injury). See State v. Kobel, 927 S.W.2d 455, 460 (Mo.App.W.D.1996). The State further alleged that Movant stabbed Victim again even after Victim gave her the money she had on her person.

When given the opportunity to respond, Movant denied the State’s factual recitation was entirely accurate, stating that she “did not just keep repeatedly stabbing this woman after she gave me her money.” However, Movant personally testified that when she entered Victim’s shop, she grabbed Victim around the neck and “did stab her a couple of times” before demanding and receiving money from Victim. Thus, Movant’s own admissions established that she was guilty beyond a reasonable doubt of committing robbery in the first degree. Movant forcibly stole money from Victim while using and threatening the immediate use of the knife with an eight or nine inch blade, a dangerous instrument. Moreover, the record shows her guilt as to the associated armed criminal action count also was established. Section 569.020.2 (first-degree robbery is class A felony); Section 571.015.1 (any person who commits any felony with, or through use, assistance, or aid of dangerous instrument is also guilty of crime of armed criminal action).

Regarding the crime of first-degree assault, likewise the record shows that, at Movant’s plea hearing and in the State’s charging documents, the State alleged evidence satisfying the offense’s elements. An individual commits the crime of first-degree assault “if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.” Section 565.050.1. The Information charged that Movant knowingly caused serious physical injury to Victim by stabbing her. A person acts knowingly with respect to his conduct when he is aware of the nature of his conduct, or with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause that result. Section 562.016.3. See State v. Stiegler, 129 S.W.3d 1, 4 (Mo.App.S.D.2003).

During the plea hearing, in addition to stating that Movant repeatedly stabbed Victim in the head and arm area with a knife, the State also asserted that Victim was taken to an emergency room where she was admitted in critical condition with multiple stab wounds to her head, neck and arms. It is undeniable Movant had to be aware that her conduct, inflicting multiple stab wounds to Victim’s head and neck with a large knife, was practically certain to cause serious physical injury to Victim. Again, the record before us reveals that a factual basis existed for Movant’s guilty pleas to first-degree assault and its associated armed-criminal-action count. Section 565.050.2 (first-degree assault is class A felony if actor inflicts serious physical injury on victim); Section 571.015.1. See also State v. Howerton, 691 S.W.2d 516, 517-18 (Mo.App.S.D.1985) (evidence that defendant plunged knife to hilt in victim’s abdomen, resulting in serious injury requiring emergency surgery, conclusively showed defendant knowingly caused serious physical injury to victim).

The motion court did not clearly err in denying Movant’s Amended Motion without an evidentiary hearing because the record of the guilty-plea proceedings directly refutes her claim that the plea record failed to establish she acted knowingly in robbing and assaulting Victim.

Point denied.

Conclusion

The judgment of the motion court is affirmed.

MARY K. HOFF and PATRICIA L. COHEN, JJ., concurs.

      . Mo. R.Crim. P.2010.

      . All statutory references are to RSMo 2004, unless otherwise indicated.


source: Caselaw Access Project

author: ROY L. RICHTER, Chief Judge.

license: Public Domain

text:
    Amber M. McCLAIN, f/k/a Amber M. Burke, and Roy A. Dillon, Respondents, v. Gary Michael HARTLEY, Appellant.
    No. ED 93184.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 31, 2010.

      William W. Cheeseman, Noelle I. Cheeseman, Mark A. Kragel, Troy, MO, for Appellant.
    Dwayne A. Johnson, St. Peters, MO, Respondents.
   ROY L. RICHTER, Chief Judge.

Gary Hartley (“Seller”) appeals the trial court’s decision to award damages to Amber McClain and Roy Dillon (collectively, “Buyers”). We reverse and remand.

I. BACKGROUND

Seller owned real estate (“the Property”) on which a permanently affixed mobile home was located. People’s Bank and Trust (“the Bank”) held a deed of trust on the property. In March 2005, Buyers executed a contract with Seller to purchase the Property via a contract for deed. The contract noted the Bank’s deed of trust. The purchase price was fixed at $82,900; Buyers made a down payment of $22,900 and the remaining $60,000 was to bear 9% interest per annum with payments to Seller in equal monthly installments of $482.77 beginning April 12, 2005.

The contract provided that upon Buyers’ timely payment of all sums due and owing under the contract, Seller would supply a General Warranty Deed to Buyers. The contract required Buyers to pay the real estate taxes on the Property and provide a receipt to Seller showing proof that the taxes had been paid. Buyers were also required to maintain insurance naming the Bank as the principal loss payee. Buyers agreed to exhibit to Seller proof of insurance when requested.

Buyers were granted the right to prepay the debt without penalty. The contract also provided that if Buyers failed to make any payments when due, whether for the purchase price, taxes or insurance for a period of 30 days after Buyers received Seller’s written notice of default, the contract would be deemed null and void and all sums paid by Buyers prior to the default would be retained by Seller as liquidated damages. The contract requires a refund of all monies paid upon Seller’s failure to furnish a General Warranty Deed after all payments had been timely made.

The record before us is murky, at best. Apparently the Property was being used to secure multiple notes Seller owed to the Bank. Buyers failed to make payments on a regular or timely basis, failed to obtain insurance and failed to pay the taxes. Seller sent letters to Buyers advising them of these failures, but never declared a default on the contract. At one point, Buyers were at least $3,800 behind on the various payments. In 2007, the Bank began foreclosure proceedings against the Property, eventually foreclosing on November 30, 2007. Seller’s partner in a business venture later paid off all of Seller’s notes at the Bank and acquired the Property. Buyers vacated the premises after the foreclosure.

II. DISCUSSION

Buyers filed suit requesting recovery under multiple theories. The First Amended Petition contained five counts. Count I alleged Breach of Contract and sought recovery of all funds paid by Sellers to Buyer (an amount “in excess of $35,900”); Count II requested relief on a theory of quantum meruit and requested recovery in excess of $35,900; the third Count (also named Count I in the Petition) alleged Negligent Representation alleging damages in excess of $35,900; the fourth Count (labeled Count III in the Petition) alleged Fraudulent Representation alleging damages of $36,145.84 and the final Count (labeled Count IV) alleged Fraud by the Omission, alleging damages in excess of $35,900. Seller answered the First Amended Petition and asserted six affirmative defenses. The case was tried before the trial court without a jury and the judgment includes findings of fact and conclusions of law. The judgment does not “track” the Petition, and does not mention the affirmative defenses raised. The trial court’s judgment, under a theory of unjust enrichment, awards Buyers the amount of their down payment, less the monthly payment amounts for the last four months in which Buyers did not make the required payments.

Seller raises five points on appeal; we find Seller’s third point to be disposi-tive and need not discuss the other points raised. “Issues that are not essential to a disposition of the case should not be addressed.” O’Hare v. Permenter, 113 S.W.3d 287, 289 (Mo.App. E.D.2003) (quoting State v. Kinkead, 983 S.W.2d 518, 520 (Mo. banc 1998)). In his third point on appeal, Seller argues that the trial court erred in entering a judgment for Buyers because the contract is not ambiguous. We agree.

The trial court specifically denied Buyers’ claim on their quantum meruit theory. However, the trial court based its award on the unpleaded theory of unjust enrichment, stating that it was Seller who had breached, and not Buyers. Further, the trial court found that because the contract was ambiguous as to what the penalty would be should Seller breach, Seller was unjustly enriched when he kept the down payment after breaching. In finding that the contract was ambiguous, the trial court went outside of the pleadings and evidence in entering its judgment. Nothing in the pleadings alleged any ambiguity in the contract and no testimony was elicited alleging any ambiguity, yet the Court found the contract to be ambiguous.

The trial court’s authority is limited to such questions as are presented by the parties in their pleadings. UT Commc’ns Credit Corp. v. Resort Dev., Inc., 861 S.W.2d 699, 707 (Mo.App. E.D.1993). Further, the relief granted by the judgment cannot be “other or greater than” that which was “demanded in the petition.” La Presto v. La Presto, 308 S.W.2d 724, 727 (Mo.1958).

The trial court’s judgment will be affirmed unless there is no substantial evidence to support the judgment, unless the judgment is against the weight of the evidence or unless the judgment erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo.1976).

As stated, the trial court found the contract to be ambiguous. However, the contract is not ambiguous — if Buyers breach, Seller is entitled to retain all sums paid. If Seller breaches the contract, Buyers are to recover all sums paid.

The trial court found that Buyers fully complied with their obligation under the contract and thus Seller was unjustly enriched in keeping the down payment. The evidence presented at trial clearly refutes this finding. Buyers failed to make timely payments on the contract, failed to pay taxes on the property, and failed to maintain homeowners insurance. All of these failures were breaches by Buyers under the terms of the contract.

Because the trial court based its judgment on a theory that was not raised in the pleadings, and because the judgment was not supported by substantial evidence, we reverse and remand for a new trial.

III. CONCLUSION

The judgment is reversed and remanded.

JAMES R. HARTENBACH, SP. J., and KENNETH M. ROMINES, J., concur.

      . Of the five theories in Buyers’ First Amended Petition, the only Count addressed by the trial court’s judgment was to deny Buyers’ quantum meruit count. Further, the trial court did not address any of the six affirmative defenses raised by Seller.


text:
    STATE of Missouri, Respondent, v. Leon James SHELTON, Appellant.
    No. ED 94134.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 31, 2010.
    Zachary W. Rennick, Washington, MO, for appellant.

      Jonathan H. Hale, Jefferson City, MO, for respondent.
   GARY M. GAERTNER, JR., Presiding Judge.

Appellant Leon James Shelton (Shelton) appeals from the trial court’s judgment denying his Petition for Expungement (Petition) of his prior conviction for Driving While Intoxicated (DWI). Shelton contends that the trial court erred in denying his Petition because at the time of the hearing on the Petition, he had not been convicted of any other alcohol-related driving offenses and had no other alcohol-related contacts. Effective August 28, 2010, the Missouri legislature has enacted changes to the DWI laws, eliminating the ability of DWI offender to expunge a DWI criminal conviction while a second DWI charge is pending. This court, however, is bound by the law as it is presently written, and we therefore reverse and remand.

Background

In 1993 Shelton pleaded guilty to a misdemeanor DWI, under Section 577.010 RSMo 1982. On August 10, 2009, he filed the Petition to expunge his 1993 conviction. For support, he asserted that the 1993 conviction was his first alcohol-related driving offense while operating a non-commercial vehicle, that a period of ten years had passed since the conviction, and that since 1993 he had not been convicted of any other alcohol-related driving offenses or had other alcohol-related enforcement contacts, as defined in Section 302.525 RSMo.

In response, the Missouri Department of Revenue (DOR) moved to dismiss the petition, attaching Shelton’s driving record, which indicated a second misdemeanor DWI offense on April 18, 2009. The DOR’s motion noted that on May 3, 2009 Shelton received notice that his driving privileges would be suspended effective 15 days from the date of the notice unless he requested a hearing. Shelton requested a hearing, which was pending as of the date of the motion.

The trial court denied Shelton’s Petition. The court determined that the pending administrative suspension was an “alcohol-related enforcement contact,” which rendered Shelton ineligible for expungement under Section 577.054. This appeal follows. In place of an appellate brief opposing reversal, the Director of Revenue has filed a memorandum in which it states that it “does not dispute [Sheltonj’s entitlement to an expungement of the criminal records presented to the trial court.”

Standard of Review

This court will affirm the judgment of a trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or the court erroneously declared or applied the law. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Discussion

Section 577.054 currently provides that an individual who has been convicted of a first misdemeanor or ordinance alcohol-related driving offense of a non-commercial vehicle, shall, upon application, be granted an order of expungement of all official records if the court determines after a hearing that in the ten years prior to the date of the application such person has no other alcohol-related driving offenses and no other alcohol-related enforcement contacts, as defined in Section 302.525. Section 577.054.1. Section 302.525 defines “alcohol-related enforcement contacts” as any suspension or revocation of driving privileges, or any conviction entered in Missouri or any other state involving a DWI. Section 302.525.3.

The trial court relied on Fowler v. Dir. of Revenue, 823 S.W.2d 134 (Mo.App. E.D.1992) in denying the Petition, and Shelton relies on Russell v. Dir. of Revenue, 83 S.W.3d 72 (Mo.App. W.D.2002) on appeal. Neither case, however, is dispositive here. In Fowler, the defendant petitioned for expungement of a prior DWI conviction one day after his administrative hearing during which the DOR made a final determination to suspend defendant’s license, effective in 15 days. This court held that the alcohol-related enforcement contact occurred when the DOR took formal action— by way of a final determination — to withdraw a person’s license, not on the future date when the suspension was to take effect. Fowler, 823 S.W.2d at 134, 136. In Russell, the defendant petitioned for ex-pungement of a prior DWI conviction following an administrative hearing during which the agency determined there was no probable cause to believe the defendant had committed an alcohol-related traffic offense and made a final determination not to suspend his driving privileges. Russell, 83 S.W.3d at 73-74.

Here, the record shows that at the time of the expungement hearing, the DOR hearing to revoke or suspend Shelton’s driving privileges was still pending. When an individual requests a hearing on a license suspension — as Shelton did here— the suspension “shall be stayed until a final order is issued following the hearing.” Section 302.525.1. Because any preliminary suspension by the DOR of Shelton’s license had been stayed, there was no “formal action” against his license. Further, at the time of the expungement hearing Shelton had not been convicted of the misdemeanor DWI stemming from the April 2009 arrest. Thus, Shelton had had no alcohol-related enforcement contacts, and was eligible for expungement under Section 577.054. See Section 302.500(7) (suspension is temporary withdrawal of individual’s license by formal action by DOR); Fowler, 823 S.W.2d at 136 (alcohol-related enforcement contact occurs when DOR takes formal action to withdraw person’s license).

Effective August 28, 2010, Section 577.054.1 will specifically disallow expungement of a first DWI conviction if “other alcohol-related charges or alcohol-related enforcement actions [are] pending at the time of the hearing on the [expungement] application.” MO H.B. 1695 (2010) (enacted). Because we must apply the laws as they are currently written, we conclude that Mr. Shelton was entitled to an ex-pungement of his first DWI conviction. See Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002) (“Courts must give effect to the language as written. They are without authority to read into a statute legislative intent contrary to intent made evidence by plain language.”).

Conclusion

The judgment is reversed and remanded for further proceedings in accordance with this opinion.

MARY K. HOFF and PATRICIA L. COHEN, JJ., concur.

      . Consequently, the applicability of our analysis in this case is very narrow.

      . All statutory references are to RSMo Supp. 2010, unless otherwise indicated.


author: NANNETTE A. BAKER, Judge.

text:
    METROPOLITAN ST. LOUIS SEWER DISTRICT, Respondent, v. TOMAX DEVELOPMENT CORPORATION and Sav Investment Corporation, f/k/a Lemay Land Corporation, Appellants.
    No. ED 93955.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 31, 2010.
    Patrick Gadell, Timothy O’Sullivan, Co-Counsel, St. Louis, MO, for appellant.
    Michael Kasperek, Randall Gusdorf, Co-Counsel, Clayton, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Introduction

Tomax Development Corporation and SAV Investment Corporation (collectively “Appellants”) appeal from the trial court’s grant of Metropolitan St. Louis Sewer District (“MSD”)’s motion for summary judgment. Appellants’ brief fails to comply with the rules of appellate procedure so substantially that we cannot review this appeal, and therefore we dismiss it.

Discussion

Appellants’ brief fails to comply with Rule 84.04 in virtually every respect and renders their claims largely incomprehensible. Rule 84.04 sets forth various requirements for appellate briefs and compliance with these requirements is “mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made.” Brown v. Ameristar Casino Kansas City, Inc., 211 S.W.3d 145, 147 (Mo.App. W.D.2007) (internal quotation omitted).

Rule 84.04(a) sets forth four requirements for an appellant’s brief. These are (1) a jurisdictional statement, (2) a statement of facts, (3) the points relied on, and (4) argument. Appellants’ statement of facts does not contain a “fair and concise statement of the facts relevant to the questions presented for determination without argument.” Rule 84.04(c). Appellants’ one page statement of facts contains only three citations to the record, all of which reference entire documents without specifying on which page the record supports their facts. Further, one of Appellants’ wholly inadequate citations to the record references 130 pages of the Legal File. Rule 84.04(i); Lueker v. Missouri W. State Univ., 241 S.W.3d 865, 868 (Mo.App. W.D.2008) (record citations in appellate briefs are “mandatory and essential for the effective functioning of appellate courts because courts cannot spend time searching the record to determine if factual assertions in the brief are supported by the record”).

Rule 84.04(d) sets forth the requirements for points relied on. It requires that the point state briefly the actions or rulings of the court for which review is sought, and wherein and why they are claimed to be erroneous.

First, Appellants do not comply with Rule 84.04(d)(1), which requires each point relied on to identify the trial court ruling or action challenged, to provide a concise statement of the legal reasons for the claim on appeal, and to explain why the legal reasons support the claim of reversible error. In fact, Appellants do not identify a point relied on. They merely state in the bold heading of their section entitled “argument”, “[t]he trial court improperly granted MSD’s motion for summary judgment, since the response filed by the defendants was sufficient under Rule 74.02(c)2”.

In Thummel v. King, the Missouri Supreme Court held:

The requirement that the point relied on clearly state the contention on appeal is not simply a judicial word game or a matter of hypertechnicality on the part of appellate courts. It is rooted in sound policy. Perhaps the most important objective of the requirement relative to the points relied on is the threshold function of giving notice to the party opponent of the precise matters which must be contended with and answered. Absent that, it is difficult, at the very least, for respondent’s counsel to properly perform his briefing obligation.
In addition, such notice is essential to inform the court of the issues presented for resolution. Clear statement of the points relied on facilitates full advocacy and affords the opportunity for clarification by meaningful questions directed to the issues stated in the points relied on. If the appellate court is left to search the argument portion of the brief (or even worse, to search the record on appeal) to determine and clarify the nature of the contentions asserted, much more is at stake than a waste of judicial time (even though in this time of increased litigation and heavy caseloads, that alone is sufficient justification for the rules). The more invidious problem is that the court may interpret the thrust of the contention differently than does the opponent or differently than was intended by the party asserting the contention. If that happens, the appellate process has failed in its primary objective of resolving issues raised and relied on in an appeal.

570 S.W.2d 679, 686 (Mo. banc 1978).

Second, Appellants’ brief fails to comply with Rule 84.04(d)(5) requiring that immediately following each point relied on, the appellant must include a list of cases, not exceeding four, and any other authority upon which the party principally relies. Appellants’ brief contains no such list of cases or other authority.

Third, Appellants’ brief violates Rule 84.04(e) in its argument section, because it fails to set forth the applicable standard of review for their claimed error. Appellants fail to plainly identify the claimed error. And finally, Appellants’ brief does not contain a proper jurisdictional statement as required by Rule 84.04(b).

“Violations of Rule 84.04 are grounds for a court to dismiss an appeal.” Shochet v. Allen, 987 S.W.2d 516, 518 (Mo.App. E.D.1999). To determine whether Appellants are entitled to relief would require this Court to decipher their point, issues, and arguments, placing us in the untenable position of acting as Appellants’ advocate. Schultz v. Warren County, 295 S.W.3d 237, 238 (Mo.App. E.D.2009).

Conclusion

Appellants’ brief so substantially fails to comply with the briefing requirements of Rule 84.04 that it preserves nothing for appellate review. Thornton v. City of Kirkwood, 161 S.W.3d 916, 919 (Mo.App. E.D.2005). The appeal is dismissed.

KURT S. ODENWALD, P.J., and ROBERT G. DOWD, JR., J., concur.

      . All rule references are to Mo. Rules Civ. P.2010, unless otherwise indicated.


author: MARY K. HOFF, Judge.

text:
    In the Interest of: M.M., a minor.
    No. ED 93857.
    Missouri Court of Appeals, Eastern District, Division Five.
    Aug. 31, 2010.

      Patricia Harrison, St. Louis, MO, for Appellant.
    Sakina Yasmine Ahmad, St. Louis, MO, for Respondent.
   OPINION

MARY K. HOFF, Judge.

M.M., a juvenile, appeals from the Order denying the Motion to Vacate the Order and Judgment of Jurisdiction entered pursuant to Section 211.031.1(3), RSMo 2000, adjudicating M.M. of the delinquency offense of Tampering in the First Degree, in violation of Section 569.080. M.M. argues the court erred in denying the motion because: (1) she did not voluntarily, intelligently, or knowingly waive her right to counsel; and (2) there was no factual basis for her guilty plea. We reverse and remand.

Factual and Procedural Background

On May 16, 2009, M.M. was charged by petition with the delinquency offense of Tampering in the First Degree pursuant to Section 569.080.1(2). A detention hearing was held on May 20, 2009, and an attorney with the Public Defender’s Office entered her appearance on behalf of M.M. The matter was set for an adjudication hearing on June 23, 2009. M.M. was released to the custody of her mother with specific conditions including participating in the home detention program and was advised that any violation of the rules may result in her placement in detention. At that time, the family believed an attorney from the Public Defender’s Office would be representing their daughter, M.M.

Days before trial, M.M.’s mother received a letter from the Public Defender advising she would seek to withdraw in M.M.’s case as the family did not meet the indigency standards. Just prior to trial, the Deputy Juvenile Officer made a home visit to the family. The mother advised of her need for a continuance due to the letter from the public defender’s office. The Deputy Juvenile Officer informed mother that if she requested a continuance, he would ask that M.M. be detained for various home detention violations. No specific violation reports were filed prior to that meeting or thereafter.

On the day of trial, the court announced it had a motion from the Public Defender’s Office to withdraw from the case. M.M.’s mother stated that she was aware of the request. The court explained the Attorney for the Juvenile Officer was ready to proceed and wanted to know whether the family would like time to consult with a private attorney. M.M.’s mother stated, “We’d like to consult with an attorney, because we — .” The court replied, “Do you know how much time — And I don’t have a lot of time that I can extend in terms of continuing this case.” M.M.’s mother requested a few weeks to a month. The Attorney for the Juvenile Officer indicated July 19, 2009, was the next possible date for her witnesses to be available for trial. She then requested that M.M. be detained during the continuance due to six alleged home detention violations. No specific information was given concerning these allegations and M.M.’s mother stated, “I don’t understand this.” M.M. and her mother then attempted to explain the alleged violations.

The court discussed whether M.M. should be detained in light of the alleged violations or whether an electronic monitor was available pending trial. The Deputy Juvenile Officer stated that no GPS systems were available but was not sure on the availability of the electronic monitor. The court took a recess and asked the Deputy Juvenile Officer to look into the availability of an electronic monitor or else it would have the child detained for the entirety of the continuance lasting until July 20 or 21, 2009.

Immediately after the recess, the court confirmed with M.M.’s mother that she had the option of entering a plea of guilty and offering an explanation during which the court would ask questions about the incident precipitating the charge. The court advised that once M.M. pled and the court proceeded with questioning, she could not then withdraw her plea and request to do something else. M.M. and her mother then agreed that she would enter a plea and proceed with the court’s examination. The court inquired, “And you’re not represented today? You’re not — You don’t have an attorney appearing with you today?” M.M. responded, “No, ma’am.” The court then reiterated, “But ... you would like to proceed in this case?” M.M. confirmed that she did and the court proceeded to inquire into whether she was pleading guilty to the offense of tampering in the first degree on May 15, 2009, as alleged in the petition.

At this point, M.M. was sworn in and the court proceeded with the guilty plea. The court inquired about the recommendation of the Deputy Juvenile Officer, to which he responded “[o]fficial court supervision.” The court confirmed that M.M. understood this recommendation. The court established that M.M. was not under the influence of any drugs, medication, or alcohol and that nothing was impairing her ability to understand the proceedings. The court then discussed with M.M. the understanding of her rights, asking whether she discussed her plea of guilty with her mother, to which she responded that she had. The court inquired into whether she understood that she did not have to plead guilty in this case, and that she could instead go to trial, “[a]nd understand that if you have a trial, I’d have a trial proceeding before me, the [Attorney for the Juvenile Officer, ... would have to present her case and her evidence. You would then have an opportunity to present an explanation or a defense. But rather than do that, you want to admit that this — that this offense is what happened?” M.M. responded, ‘Tes, ma’am.” The Attorney for the Juvenile Officer then explained what she would have proven at trial:

the State would have proved, beyond a reasonable doubt, that the juvenile committed the offense of tampering in the first degree, which is a Class C felony, in that on or about May 15, 2009, in the City of St. Louis, State of Missouri, at approximately 8:30 in the evening in the 1500 block of Cochran Place, the juvenile, knowingly and without the consent of the owner, unlawfully operated a motor vehicle. That was a 2004 Chrysler Sebring.

When asked by the court if she was admitting to this offense as described by the Attorney for the Juvenile Officer, M.M. responded, ‘Tes, ma’am.” The court then asked M.M. to explain what happened in her own words. M.M. proceeded to relate the events that resulted in her arrest adding that she had permission from her friend to drive the car but only later realized the friend did not have permission to operate the vehicle. Following this exchange, the court asked M.M. to reaffirm her understanding the offense of tampering in the first degree, “which is if you’re riding in a car without the owner’s permission?” M.M. replied, ‘Tes, ma’am.”

The court’s final questions were whether anyone had forced her to come in and give this testimony, to which she replied “No, ma’am.” M.M. then stated she was giving testimony voluntarily and she wanted the court to accept her plea. The court accepted the plea of guilty as being voluntary and found that “the juvenile understands what she is doing.” The court also found a factual basis for the admission, and that she was guilty beyond a reasonable doubt of having committed the charged offense. The court entered its Judgment of Jurisdiction reflecting this admission and scheduled a disposition hearing.

At the disposition hearing, the Deputy Juvenile Officer recommended official court supervision. The Deputy Juvenile Officer indicated he had gone over the all of the conditions and rules with M.M. and her mother. The owner of the vehicle then testified about the damage to her car and sought restitution. As she failed to provide a receipt for losses, the court gave her 30 days to submit documentation. The court entered an Order and Judgment of Disposition placing M.M. on official court supervision.

On July 13, 2009, the court amended the Order of Disposition to require M.M. to pay $500 restitution for the damage to the owner’s car. The court ordered the disposition placing M.M. on official court supervision subject to the general rules of probation and specific rules contained in the June 23, 2009, Order.

On July 16, 2009, M.M. filed a Motion to Vacate the Order and Judgment of Jurisdiction and set the cause for a new adjudication hearing. The motion stated the facts concerning this cause and alleged M.M.’s right to counsel and any waiver of her right was not voluntary, intelligently, or knowingly made as required by law. On October 16, 2009, the court denied the motion without including findings of fact or conclusions of law. This appeal follows.

Standard of Review

Juvenile proceedings are reviewed under the same standard as other court-tried cases. In the Interest of J.A.H., 293 S.W.3d 116, 118 (Mo.App. E.D.2009); In the Interest of D.L., 999 S.W.2d 291, 293 (Mo.App. E.D.1999). Juvenile court decisions will be sustained unless there is no substantial evidence to support the verdict; it is against the weight of the evidence; or it erroneously declares the law or misapplies the law. 293 S.W.3d at 118; D.L., 999 S.W.2d at 293.

Discussion

In her first point, M.M. argues the court erred in denying the Motion to Vacate the Order and Judgment of Jurisdiction because M.M. did not voluntarily, intelligently, or knowingly waive her right to counsel. M.M. contends she felt coerced into pleading guilty under threat of being detained if the hearing was continued for the family to find counsel. M.M. further contends her right to counsel was not properly explained to her in violation of her 6th Amendment right to counsel and her 14th Amendment right to due process of the law and to a fair trial. We agree.

To assure a full and fair hearing, a juvenile is entitled to be represented by counsel in all proceedings. Section 211.211.1; Rule 116.01(a). Because of the importance of the right to counsel and to the fairness of the proceedings, there must be a strict and literal compliance with the statutes affecting this right and failure to strictly comply results in reversible error. In the Interest of D.J.M., 259 S.W.3d 533, 535 (Mo. banc 2008); D.L., 999 S.W.2d at 293-4. The constitutional requirements for waiver of counsel by juveniles in proceedings should be no less than those required for waiver of counsel by adults in criminal actions. D.L., 999 S.W.2d at 294. An effective waiver of counsel must be voluntary, knowing, and intelligent. Id. A purported waiver by a child requires courts to take special care when scrutinizing its effect. Id. at 294 (citing Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 92 L.Ed. 224 (1948)). Whether the waiver is valid depends on the particular circumstances of the case and should be reviewed based on the “totality of the circumstances,” including the background, experience and conduct of the accused, the child’s age, education and intelligence, and capacity to understand the warnings given. Id. (citing In re A.D.R., 603 S.W.2d 575, 584 (Mo. banc 1980)). Further, if the record does not show that the waiver was made intelligently and knowingly, the presumption is that it was not. Id. (citing State v. Davis, 934 S.W.2d 331, 334 (Mo.App. E.D.1996)).

Here, the record shows M.M. was 16 years old and had no prior history with the court. At the detention hearing, on May 20, 2009, M.M. was informed she would be represented by counsel provided by the Public Defender’s Office. On June 17, 2009, days before the adjudication hearing, an attorney from the Public Defender’s Office filed a Motion to Withdraw alleging M.M. was not indigent and therefore should be permitted to withdraw from representation. On the same day, the mother received a letter from the Public Defender’s Office informing her that M.M.’s case did not qualify for an attorney and that it intended to seek a motion to withdraw from representation. On June 22, 2009, the Deputy Juvenile Officer met with the family for a home visit. The mother informed the Deputy Juvenile Officer about the letter from the Public Defender’s Office and explained that she would need time to get a new lawyer. The Deputy Juvenile Officer advised the family that M.M. had several home detention violations and if they sought a continuance at the adjudication hearing, he would recommend that M.M. be detained.

On June 23, 2009, at M.M.’s adjudication hearing, the mother immediately asked for more time to obtain counsel for M.M. In response to the mother’s request, the Deputy Juvenile Officer informed the court that M.M. had six home detention violations and, if the case was continued, M.M. should be detained. In light of this announcement, the court then discussed with the family that such violations would require detention or an electronic monitor to be put in place until the new hearing date could be determined. The court then took a recess for the Deputy Juvenile Officer to determine whether alternatives to detention were available. After the recess, there was the following exchange:

COMMISSIONER CLARKE: She can — She can enter a plea of guilty and she can offer an explanation, I can ask her what’s going on.... In fact, I will ask her what’s happened and what’s going on. But she can’t then withdraw it and say, well, I want to do something else.
[MOTHER]: Okay. She’ll go ahead and then plead, and then you can ask her to explain.
COMMISSIONER CLARKE: Okay. So — Well, if that’s — if that’s what you’re saying, you want to — you want to enter a plea?
[MOTHER]: Yes.
THE JUVENILE: Yes, ma’am.
COMMISSIONER CLARKE: Okay. Well, then let’s-let’s go ahead and get on the record then.

Following this exchange, M.M. admitted to the allegations without counsel present at either the adjudication or disposition hearing. The Deputy Juvenile Officer thereafter dropped his recommendation for detention and recommended Official Court Supervision at home with her mother. Here, the record shows M.M.’s decision to proceed was predicated on the fact that her mother believed her daughter, upon pleading guilty, would later be able to explain her defense to the allegations and stay out of detention. Based on the totality of the circumstances, M.M.’s waiver of her right to counsel was not voluntary.

Moreover, from the record, M.M.’s waiver of her right to counsel was not intelligently and knowingly made as she was not adequately advised of her right to counsel or appropriately informed of the consequences of a decision to proceed unrepresented. Missouri courts have held that a valid waiver by a juvenile in a delinquency matter must be made with an apprehension of:(l) the nature of the charges; (2) the statutory offenses included within them; (3) the range of allowable punishments thereunder; (4) possible defenses to the charges and circumstances in mitigation thereof; and (5) all other facts essential to a broad understanding of the whole matter. Id. (citing State v. Schnelle, 924 S.W.2d 292, 296-97 (Mo.App. W.D.1996)). In D.L., the court was troubled by the juvenile court’s failure to question the juvenile or his mother regarding their knowledge of various trial procedures or the rules of evidence or the extreme disadvantage of appearing pro se. Id. at 296. The court held that constitutional requirements for waiver of counsel by juveniles in proceedings should be no less than those required for waiver of counsel by adults in criminal actions. Id. at 291.

Similarly, in D.J.M., the Missouri Supreme Court held that there must be strict and literal compliance with Section 211.211, which states that a party is entitled to be represented by counsel in all proceedings and, when a petition is filed, the court shall appoint counsel for the child whenever necessary to assure a full and fair hearing. Section 211.211.1; Section 211.211.3; D.J.M., 259 S.W.3d at 535. In the court found that there was no evidence on the record to indicate that there was a discussion of D. J.M.’s right to counsel or a knowing and intelligent waiver of this right. Id. at 536. The juvenile court did not advise D.J.M. of the nature of the proceedings, the consequences of the finding, and possible defenses or dangers of proceeding without counsel. Id. As a result, the court determined that the juvenile court failed to strictly comply with Section 211.211 and that there was no valid waiver of counsel. Id.

As in D.J.M., there is nothing in the record to support a finding that M.M. knowingly and intelligently waived her right to counsel. The court’s inquiry into M.M.’s decision to waive her right to counsel consisted of only two questions.

COMMISSIONER CLARKE: And you are not represented today? You’re not — You don’t have an attorney appearing with you today?
THE JUVENILE: No, ma’am.
COMMISSIONER CLARKE: But you would like to proceed in this case?
THE JUVENILE: Yes, ma’am.

The court then further explored her understanding of what she was doing after she made the decision to plead guilty and whether she had spoken to her mother about the decision to waive her right and proceed without counsel:

Q. And as far as entering a plea of guilty this morning, did you 'talk this over with your mother?
A. Yes, ma’am.
Q. Okay. And you understand that you don’t have to plead guilty in this ease? You understand that you don’t have to plead guilty, that you could proceed with trial?
A. Yes, ma’am.
Q. And understand that if you have a trial, I’d have a trial proceeding before me, the [Ajttorney for the Juvenile Officer, ... would have to present her case and her evidence. You would then have an opportunity to present an explanation or a defense. But rather than do that, you want to admit that this — that this offense is what happened?
A. Yes, ma’am.

Apart from this brief colloquy, our review of the record indicates the waiver of counsel by M.M. was not preceded by a discussion of the nature of the charges, the range of allowable punishments, her possible defenses, or other facts essential to a broad understanding of the case. D.J.M., 259 S.W.3d at 536; D.L., 999 S.W.2d at 294. As such, M.M. was not properly informed of her decision to proceed unrepresented and the record does not support a finding of a knowing or intelligent waiver of counsel. Point I is granted. Since Point I is dispositive of this appeal, we need not address Point II.

Conclusion

We reverse the decision of the court and remand this matter with instructions to vacate the judgment and for further proceedings.

GARY M. GAERTNER, Presiding Judge and PATRICIA L. COHEN, Judge, concur.

      . Unless otherwise indicated, all further statutory references are lo RSMo 2000.

      . The Attorney for the Juvenile Officer informed this court that a Respondent’s brief would not be Hied.

      . Given the record before us, we note that the plea may have been deficient as well.


author: ROBERT G. DOWD, JR., Judge.

text:
    Isreal ODEN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93784.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 31, 2010.

      Mark A. Grothoff, Columbia, MO, for appellant.
    Chris Koster, Attorney General, Jamie P. Rasmussen, Asst. Attorney General, Jefferson City, MO, for respondent.
   ROBERT G. DOWD, JR., Judge.

Israel Oden (“Movant”) appeals from the judgment of the motion court denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Movant’s sole argument is that the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief because the trial court was without jurisdiction to try or sentence Movant in that the State failed to bring Movant to trial within 180 days as required by the Uniform Mandatory Disposition of Detainers Law (“UMDDL”). We find the motion court’s findings of fact and conclusions of law are not clearly erroneous and affirm.

Movant was convicted after a bench-trial of one count of second-degree murder, Section 565.021, RSMo 2000, and one count of armed criminal action, Section 571.015. Movant was sentenced to consecutive terms of imprisonment of twenty-five years for second-degree murder and five years for armed criminal action. Movant’s convictions and sentences were affirmed on direct appeal. State v. Oden, 271 S.W.3d 62 (Mo.App. E.D.2008).

Movant subsequently filed a Rule 29.15 motion for post-conviction relief arguing the trial court lacked jurisdiction to convict and sentence Movant because the State failed to bring him to trial within 180 days as required by the UMDDL.

After an evidentiary hearing, the motion court issued findings of fact and conclusions of law and its order and judgment denying Movant’s Rule 29.15 motion. The motion court found Movant had waived any claim regarding the failure to bring him to trial within the time period specified by the UMDDL by requesting a change of venue and a continuance. This appeal follows.

Our review of a motion court’s findings on a Rule 29.15 motion for post-conviction relief is limited to a determination of whether the motion court’s findings and conclusions are clearly erroneous. Rule 29.15(k). The findings and conclusions are only clearly erroneous if, after reviewing the entire record, we are left with the firm and definite impression a mistake has been made. Jackson v. State, 205 S.W.3d 282, 284 (Mo.App. E.D.2006).

In his sole point, Movant argues the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief because the trial court was without jurisdiction to try or sentence Movant because the State failed to bring Movant to trial within 180 days as required by the UMDDL. We disagree.

The UMDDL is set forth in Sections 217.450 et seq. Section 217.450 provides:

Any person confined in a department correctional facility may request a final disposition of any untried indictment, information or complaint pending in this state on the basis of which a law enforcement agency, prosecuting attorney’s office, or circuit attorney’s office has delivered a certified copy of a warrant and has requested that a detainer be lodged against him with the facility where the offender is confined.

Further, Section 217.460 provides:

Within one hundred eighty days after the receipt of the request and certificate, pursuant to sections 217.450 and 217.455, by the court and the prosecuting attorney or within such additional necessary or reasonable time as the court may grant, for good cause shown in open court, the offender or his counsel being present, the indictment, information or complaint shall be brought to trial. The parties may stipulate for a continuance or a continuance may be granted if notice is given to the attorney of record with an opportunity for him to be heard. If the indictment, information or complaint is not brought to tñal within the period and if the court finds that the offender’s constitutional right to a speedy trial has been denied, no court of this state shall have jurisdiction of such indictment, information or complaint, nor shall the untried indictment, information or complaint be of any further force or effect; and the court shall issue an order dismissing the same with prejudice.

(emphasis added).

Defendant argues he filed a request for a speedy disposition on November 7, 2005, but that no rulings were made on his pretrial motions until after the deadline passed on May 6, 2006. Defendant’s jurisdictional argument is based on the above-emphasized language of Section 217.460.

In J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), the Supreme Court simplified the way in which jurisdictional analysis is conducted. The Supreme Court explained:

Missouri courts recognize two kinds of jurisdiction: subject matter jurisdiction and personal jurisdiction. These two kinds of jurisdiction — and there are only two for the circuit courts — are based upon constitutional principles. Personal jurisdiction is, for the most part, a matter of federal constitutional law. Subject matter jurisdiction is governed by article V of the Missouri Constitution.

Id. at 252 (footnote omitted). Personal jurisdiction is not at issue here. The Supreme Court defined subject matter jurisdiction as “the court’s authority to render a judgment in a particular category of case.” Id. at 253. The Missouri Constitution grants circuit courts “original jurisdiction over all cases and matters, civil and criminal.” Missouri Constitution Article V, Section 14.

The criminal case against Movant was pending in circuit court. The Constitution grants subject matter jurisdiction over criminal cases to circuit courts. Schmidt v. State, 292 S.W.3d 574, 576 (Mo.App. S.D.2009). Therefore, the circuit court unquestionably had subject matter jurisdiction to hear Movant’s criminal case.

It is true that Section 217.460 purports to deprive a circuit court of “jurisdiction” if the requirements of the UMDDL are not followed. Id. Prior to Wyciskalla, a number of appellate decisions had described such noncompliance as a jurisdictional defect. Id. However, that analysis is no longer valid in light of Wyciskalla. Id. at 577. A circuit court’s error in granting relief prohibited by statute is not jurisdictional in nature. Id. When a statute speaks in jurisdictional terms or can be read in such terms, it is correct to read it as merely setting statutory limits on remedies or elements of claims for relief that courts may grant. Schmidt, 292 S.W.3d at 577. Thus, the jurisdictional language in Section 217.460 operates as a statutory bar to relief, and a circuit court’s alleged noncompliance with this statute is reviewed for legal error only. Id. Thus, after Wyciskalla, Movant’s argument that the circuit court lacked subject matter jurisdiction to try his case after the purported expiration of the deadline in Section 217.460 is no longer tenable. Id.

As a result, a UMDDL speedy trial claim is not a jurisdictional claim that can be brought at any time. Schmidt, 292 S.W.3d at 577. Instead it is subject to the rule that claims of trial error are not appropriate in post-conviction cases. Allegations of trial court error, reviewable on direct appeal, are not cognizable in a post-conviction motion. Seibert v. State, 184 S.W.3d 624, 629 (Mo.App. S.D.2006). Defendant was aware of the facts giving rise to his present claim at the time of his direct appeal, but he failed to raise the issue in his direct appeal. As a result, he cannot raise it in his motion for post-conviction relief.

However, even if the issue was cognizable, Movant would not be entitled to relief. Where a defendant does not object to a trial setting beyond the 180-day time limit, he acquiesces to a trial date beyond the time limit. See State v. Overton, 261 S.W.3d 654, 661 (Mo.App. S.D.2008). In this case, Movant was present when the court set the trial date outside of the 180-day period, and Movant signed the order acknowledging the prospective court dates without objection. Thus, Movant acquiesced in the setting of the trial date outside of the 180-day limitation, thereby waiving his rights under the UMDDL.

Additionally, any delay of a defendant’s trial resulting from the defendant’s affirmative action is excludable from the 180 day period. Lee v. State, 97 S.W.3d 9, 14 (Mo.App. W.D.2002). Here, Movant filed a motion for change of venue, a motion for a continuance, a motion to suppress, and finally, Movant agreed to a trial date. These actions resulted in excluda-ble periods, and the time attributable to the State for bringing Movant to trial was within the 180-day time limit.

Therefore, the motion court did not clearly err in denying Movant’s Rule 29.15 motion for post-conviction relief. Point denied.

The motion court’s denial of Movant’s Rule 29.15 motion for post-conviction relief is affirmed.

KURT S. ODENWALD, P.J. and NANNETTE A. BAKER, J., concur.

      . All further statutory references are to RSMo 2000.

      . The motion court found Movant’s trial counsel was not ineffective for requesting the change of venue and the continuance because these were reasonably strategic decisions. We find this finding was not clearly erroneous.


author: PER CURIAM.

text:
    Tamara MUELLER, Appellant, and Christopher Mueller, Plaintiff, v. Sadik IMRAL, Respondent.
    No. ED 93628.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 31, 2010.
    Steven V. Stenger, St. Louis, MO, for Appellant.
    Jeffrey K. Suess, Melanie K. Knies, Heather J. Hayes, St. Louis, MO, for Respondent.
    Before ROY L. RICHTER, C.J., GLENN A. NORTON, P.J., and GEORGE W. DRAPER III, J.
   PER CURIAM.

Tamara Mueller (hereinafter, “Mueller”) appeals from the trial court’s judgment on her claim for damages resulting from a motor vehicle accident she was involved in with Sadik Imral (hereinafter, “Imral”). The jury returned a verdict awarding $30,000 in total damages, assessing forty percent fault to Mueller and sixty percent fault to Imral. Accordingly, the trial court entered judgment in Mueller’s favor for $18,000. Mueller raises two points on appeal alleging instructional error. First, Mueller claims there was insufficient evidence to support the submission of a comparative fault instruction. Second, Mueller argues the trial court committed reversible error when it failed to provide a definition of “yield the right-of-way” to the jury with the comparative fault instruction.

We have reviewed the briefs of the parties, the legal file, and transcript on appeal. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only, setting forth the reasons for our decision. The trial court’s judgment is affirmed pursuant to Rule 84.16(b).


text:
    Renee Lynette LINHARDT, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 94178.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 31, 2010.

      Jonathan Hale, Jefferson City, MO, for Appellant.
    Michael Kielty, St. Charles, MO, for Respondent.
   NANNETTE A. BAKER, Judge.

Introduction

Renee Lynnette Linhardt (“Driver”) filed a petition against the Director of Revenue, State of Missouri (“Director”) in the Circuit Court of St. Louis County challenging the suspension of her driving privileges for failure to maintain financial responsibility pursuant to Section 303.025. The trial court dismissed the petition for failure to exhaust all administrative remedies and remanded the case to the Director for an administrative hearing. The Director appeals only the trial court’s remand for an administrative hearing. We affirm the trial court’s dismissal of Driver’s petition and vacate its order remanding the case to the Director.

Factual and Procedural Background

The relevant facts of this case, as can be discerned from the record on appeal and the Director’s brief, originated from an April 22, 2008 accident. As a result of the accident, the Department of Revenue notified Driver on January 13, 2009 that her driving privileges would be suspended for failure to maintain financial responsibility, a violation of Section 303.025.

On February 13, 2009, Driver filed a petition in the Circuit Court of St. Louis County against the Department of Revenue seeking reversal of the suspension and reinstatement of her driving privileges. The Director filed a motion to dismiss for failure to exhaust administrative remedies. The trial court granted the motion and remanded the case to the Director for an administrative hearing.

Discussion

The Director raises one point on appeal. Before we can address the merits of the appeal, we must determine our jurisdiction sua sponte. In re Estate of Shaw, 256 S.W.3d 72, 73 (Mo. banc 2008). In cases where the trial court has exceeded its authority in entering an order or judgment, we cannot consider the merits of the appeal, but we have the jurisdiction to confine a trial court to its authority. Id. at 77; see also J.C.W. ex rel Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. banc 2009). A trial court lacks authority unless “available administrative remedies are exhausted before seeking judicial review of administrative action.” Renfro v. Dir. of Revenue, 810 S.W.2d 723, 726 (Mo.App. E.D.1991): See also O’Donohue v. Dir. of Revenue, State of Mo., 896 S.W.2d 753, 754 (Mo.App. E.D.1995).

Section 303.041 provides the procedure for informing a driver of his or her suspension of license or registration for failure to maintain financial responsibility. Once the Director determines that the driver has not maintained financial responsibility, the Director mails a notice of suspension to the driver. Section 303.041.1. The notice of suspension specifies the statutory grounds for suspension, the effective date of suspension, “the right of the person to request a hearing, the procedure for requesting a hearing, and the date by which that request for hearing must be made.” Section 303.041.2. The suspension becomes effective thirty days after the notice is deemed received. Section 303.042.1. The effective date of the suspension can be stayed if a request for a hearing is received prior to the effective date of the suspension. Section 303.041.2. Section 303.290.1 provides for administrative hearings upon the request of licensees “aggrieved by orders or acts of the director under the provisions of this chapter.”

Here, the record shows that Driver did not request an administrative hearing regarding the suspension of her license for failure to provide proof of financial responsibility. The Driver waived any available judicial action when she failed to exhaust the administrative remedies available under Section 303.041. Accordingly, the trial court did not have the authority to remand the case to the Director for an administrative hearing.

Rule 84.14 authorizes this court to finally dispose of the case. “On review, we may dispense with the remand process and ‘render the judgment that should have been rendered by the trial court.’ ” Norber v. Marcotte, 134 S.W.3d 651, 662 (Mo.App. E.D.2004) (quoting Meiners v. Meiners, 858 S.W.2d 788, 791 (Mo.App. E.D. 1993)). We are only able to dispose finally of the case when the record and evidence on appeal give us some degree of confidence in the reasonableness, fairness and accuracy of that disposition. Id. Therefore, we vacate the trial court’s order remanding the case to the Director.

Conclusion

We affirm the trial court’s dismissal of Driver’s petition and vacate its order remanding the case to the Director.

KURT S. ODENWALD, P.J., and ROBERT G. DOWD, JR., J., concur.

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

      . Driver did not file a Respondent's brief.

      . Although there was no copy of the January 13, 2009 Notice, both parties agreed that it was sent.

      . The notice is deemed received three days after mailing. Section 303.041.1.

      .All other rule references are to Mo. R. Civ. P. (2010), unless otherwise indicated.


text:
    Janet WRIGHT and Adrian Wright, Plaintiffs/Respondents, v. CITY OF PINE LAWN, Missouri, Defendant/Appellant.
    No. ED 94290.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 7, 2010.
    Donnell Smith, Stacy L. Shaw, St. Louis, MO, for Appellant.
    John D. Tajkowski, Kenneth J. Heinz, St. Louis, MO, for Respondents.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

City of Pine Lawn, Missouri (City) appeals from the circuit court’s judgment granting Janet and Adrian Wright’s Motion for Summary Judgment on their challenge as taxpayers to a City ordinance as a violation of the Hancock Amendment. We have reviewed the briefs of the parties and the record on appeal and conclude that the circuit court did not err in entering summary judgment in favor of the taxpayers. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . Mo. Const. Art. X, §§ 16-24.


text:
    Johnny P. MOORE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93793.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 7, 2010.

      Scott Thompson, Saint Louis, MO, for Appellant.
    Chris Koster, Attorney General, John M. Reeves, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J. and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Johnny P. Moore appeals the judgment denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We find that the motion court’s findings of fact and conclusions of law are not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 84.16(b).


text:
    Jeffrey THURMAN, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 93881.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 7, 2010.
    Mark A. Grothoff, Columbia, MO, for appellant.
    Chris Koster, Attorney General, Daniel N. McPherson, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Movant, Jeffrey Thurman, appeals from the judgment denying on the merits his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

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


text:
    In the Interest of L.L.M., L.M. and M.M., Minors, Bobby McCulley, Jr., Appellant.
    No. ED 93720.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 7, 2010.

      Steven W. Niemeyer, Chesterfield, MO, for appellant.
    Allison Wolff, Clayton, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

B.M. (“Father”) appeals from the judgment of the trial court terminating his parental rights to L.M., born on July 23, 2001, L.L.M., born on July 18, 2002, and M.M., born on November 13, 2003 (“the children”). Father contends that the trial court erred in terminating his parental rights in that there was insufficient clear, cogent, and convincing evidence to support its findings under section 211.447.5(1) RSMo (2000), section 211.447.5(2), and section 211.447.5(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).


text:
    Archie TIMES, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93859.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 7, 2010.
    Lisa M. Stroup, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, John M. Reeves, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Archie J. Times (hereinafter, “Movant”) appeals the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. In his sole point on appeal, Movant claims the motion court clearly erred in denying his Rule 24.035 motion for post-conviction relief when it declined to find plea counsel ineffective for promising Movant that he would be sentenced to ten years’ imprisonment if he pleaded guilty, without advising him the State would recommend twenty years’ imprisonment. Consequently, Movant alleges he pleaded guilty involuntarily, unknowingly, and unintelligently in that he would not have pleaded guilty had he known he would be sentenced to eighteen years’ imprisonment.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. Hartman v. State, 130 S.W.3d 727, 728 (Mo.App. E.D.2004). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only, setting forth the reasons for our decision.

We affirm the motion court’s denial of Movant’s Rule 24.035 motion pursuant to Rule 84.16(b).


text:
    In the ESTATE OF Doris MELTNER, a partially incapacitated and totally disabled person. Linda Robben, Appellant, v. Robert Meltner, Respondent.
    No. ED 93648.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 7, 2010.
    Linda Robben, Clayton, MO, pro se.
    Timothy P. Philipp, Maryland Heights, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

The daughter, Linda Robben, appeals the judgment entered by the probate division of the Circuit Court of St. Louis County, removing her as limited guardian of her mother, Doris Meitner, and authorizing appointment of the Public Administrator of St. Louis County as the mother’s limited guardian for purposes of medical decisions and placement. Finding no error, we affirm.

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. We affirm the trial court’s judgment. Rule 84.16(b)(1).


text:
    Kenneth SPLITT, Petitioner/Respondent, v. Loan SPLITT, Respondent/Appellant.
    No. ED 93642.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 7, 2010.
    Jane E. Tomich, St. Charles, MO, for Appellant.

      John T. Bruere, Jennifer Growe Sosh-nik, Troy, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Loan Splitt appeals from the trial court’s Judgment and Decree of Dissolution of Marriage (judgment) dissolving her marriage to Kenneth Splitt. We have reviewed the briefs of the parties and the record on appeal and conclude that the judgment is not against the weight of the evidence, Walsh v. Walsh, 184 S.W.3d 156, 157 (Mo.App. E.D.2006), and the trial court did not abuse its discretion in identifying and dividing the parties’ marital property. Pruitt v. Pruitt, 94 S.W.3d 429, 433-34 (Mo.App. E.D.2003). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    Lonnie D. SNELLING, Appellant, v. Samuel BECK, et al., Respondents.
    No. ED 94394.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 7, 2010.
    Lonnie Snelling, Saint Louis, MO, pro se.
    James A. Bingley, Saint Louis, MO, for Respondents.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J. and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Lonnie D. Snelling appeals: (1) the grant of summary judgment in favor of Samuel Beck and Cathy Beck; (2) the judgment dismissing Snelling’s case against the minor defendant, Joey Foster; (3) the judgment in favor of Snelling against Cynthia Austin; and (4) the judgment dismissing defendants John Doe and Jane Doe. No error of law appears. An extended opinion would have no prece-dential value. We affirm the judgment of the trial court under Rule 84.16(b).


text:
    In The Matter of the Care and Treatment of Albert BERNAT, a/k/a Albert L. Bernat.
    No. ED 93468.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 7, 2010.
    Emmett D. Queener, Columbia, MO, for Appellant.

      Chris Koster, Attorney General, Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Albert Bernat appeals the judgment of the probate court entered upon a jury verdict finding him to be a sexually violent predator and, as such, committing him to the custody of the director of the department of mental health. We find that the trial court did not abuse its discretion in refusing Bernat’s proposed jury instructions.

An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the trial court is affirmed under Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Anthony L. ALLEN, Defendant/Appellant.
    No. ED 93328.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 7, 2010.
    Maleaner Harvey, St. Louis, MO, for appellant.
    Chris Koster, Attorney General, John M. Reeves, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Defendant, Anthony L. Allen, appeals from the judgment entered on a jury verdict finding him guilty of second-degree murder, in violation of section 565.021 RSMo (2000); first-degree robbery, in violation of section 569.020 RSMo (2000); and two counts of armed criminal action, in violation of section 571.015 RSMo (2000). The trial court found defendant to be a persistent offender and sentenced him to thirty years imprisonment on the second-degree murder conviction, twenty years imprisonment on the first-degree robbery conviction, and ten years imprisonment on each of the armed criminal action convictions, to be served concurrently. No error of law appears and 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 reasons for this order.

The judgment is affirmed in accordance with Rule 30.25(b).


text:
    Donald J. LANGE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93327.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 7, 2010.
    Maleaner R. Harvey, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, Robert J. Bartholomew, Jr., Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Donald J. Lange (hereinafter, “Movant”) pleaded guilty to kidnapping, Section 565.110 RSMo (2000), armed criminal action, Section 571.015, burglary in the first degree, Section 569.160, stealing over five hundred dollars, Section 570.030, five counts of possession of a controlled substance, Section 195.202, and robbery in the second degree, Section 569.030. Movant was sentenced to twenty years’ imprisonment for kidnapping, armed criminal action, burglary, and robbery, and fifteen years’ imprisonment for stealing and for each count of possession of a controlled substance. Movant’s sentences are to run concurrently.

Movant now appeals from the judgment denying his Rule 24.035 motion for post conviction relief without an evidentiary hearing. Movant raises one point on appeal, alleging the motion court erred in denying his post-conviction motion because his plea counsel promised him he only would receive a ten or twelve year sentence if he entered a blind guilty plea.

We have reviewed the briefs of the parties and the record on appeal. We 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. Rule 84.16(b).

      . All further statutory references herein are to RSMo (2000) unless otherwise indicated.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Alfred L. JONES, Defendant/Appellant.
    No. ED 92755.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 7, 2010.
    Scott Thompson, St. Louis, MO, for appellant.

      Chris Koster, Attorney General, Robert J. Bartholomew, Jefferson City, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Defendant, Alfred L. Jones, appeals from the judgment entered upon a jury verdict finding him guilty of two counts of first-degree child molestation, in violation of section 566.067 RSMo (2000), and attempted first-degree child molestation, in violation of sections 564.011 and 566.067 RSMo (2000). The trial court found defendant to be a prior offender and sentenced him to ten years imprisonment on each of the first-degree child molestation counts, to be served consecutively, and five years imprisonment on the attempted first-degree child molestation count, to be served concurrently with the other sentences.

No error of law appears and 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 is affirmed in accordance with Rule 30.25(b).