author: THOMPSON, Judge: WINE, Judge,

text:
    Earl CLARK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-CA-000073-MR.
    Court of Appeals of Kentucky.
    Oct. 22, 2010.

      Shannon Dupree, Assistance Public Advocate, Department of Public Advocacy, Frankfort, KY, for appellant.
    Jack Conway, Attorney General of Kentucky, M. Brandon Roberts, Assistant Attorney General, Frankfort, KY, for appel-lee.
    Before LAMBERT, THOMPSON, and WINE, Judges.
   OPINION

THOMPSON, Judge:

Earl Clark appeals the December 11, 2008, judgment of conviction and sentence of the Jefferson Circuit Court finding Clark guilty of one count of receiving stolen property over $800 and sentencing him to two-years’ incarceration, enhanced to five years by virtue of a persistent felony offender (PFO) conviction. The two issues presented are whether Clai’k was denied due process when the Commonwealth indicted Clark on the PFO offense during his trial on the underlying substantive offense and whether a Texas misdemeanor conviction can be used as an underlying conviction for Clark’s PFO charge.

Clark was indicted on April 5, 2007, on one count of receiving stolen property over $800. A jury trial occurred on September 24 and 25, 2008. On the morning of September 25, 2008, the Commonwealth informed the trial court that Clark was eligible for a PFO charge and that it was in the process of seeking an indictment. The PFO charge was based on two prior convictions: robbery in the first degree in Jefferson County, Kentucky; and assault dating violence in Travis County, Texas, a Texas misdemeanor, for which Clark was sentenced to one year.

After the jury retired to deliberate on the charge of receiving stolen property over $300 but before a verdict, the PFO indictment was returned, and Clark was arraigned on the charge. Clark’s counsel then moved to postpone any further proceedings on the PFO charge until after the jury returned a verdict on the underlying charge. The motion was granted, and the jury subsequently returned a guilty verdict on the charge of receiving stolen property over $300.

The following day, Clark appeared for the sentencing portion of his trial and announced a desire to enter a conditional guilty plea to the PFO charge as opposed to allowing the jury to set the sentence. The Commonwealth made an offer of two-years’ imprisonment for the conviction of receiving stolen property over $300. In exchange, the PFO charge was amended from first-degree to second-degree, and the Commonwealth recommended the minimum sentence of five years on the charge. Clark accepted the offer conditioned on the right to appeal the PFO charge. Clark also moved the trial court to dismiss the PFO charge on the basis that the Texas conviction was designated as a misdemeanor by that state and, therefore, failed to make him eligible for PFO status. The trial court denied the motion, stating that the term of the sentence, not the designation of the crime by another state, was controlling, and that the Texas charge was therefore appropriately considered for PFO eligibility. A judgment of conviction and sentence was entered finding Clark guilty of receiving stolen property over $300 and sentencing him to two years, enhanced to five years by virtue of the PFO. This appeal followed.

Initially, Clark argues that he was denied due process by the Commonwealth’s failure to indict him on the PFO charge prior to the commencement of his trial. In response, the Commonwealth argues that the issues regarding the timing of the indictment were not properly preserved and that Clark was not prejudiced.

Regarding the issue of preservation, the record reveals that Clark’s counsel verbally informed the trial court that the issue was being preserved for appeal. However, even if unpreserved, the issue is subject to the palpable error rule.

In Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.2006), the Court analyzed the palpable error rule.

For an error to be palpable, it must be easily perceptible, plain, obvious and readily noticeable. A palpable error must involve prejudice more egregious than that occurring in reversible error. A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings. Thus, what a palpable error analysis boils down to is whether the reviewing court believes there is a substantial possibility that the result in the case would have been different without the error. If not, the error cannot be palpable, (internal quotations and footnotes omitted).

We are persuaded that the timing of the indictment on the PFO charge was so prejudicial to Clark’s defense that the error was palpable and, therefore, we address the substance of Clark’s due process argument.

In Price v. Commonwealth, 666 S.W.2d 749 (Ky.1984), the Kentucky Supreme Court interpreted the PFO statute to require that if the Commonwealth seeks enhancement by proof of PFO status, the defendant is entitled to notice before the trial of the underlying substantive offense. Id. at 750. The Court in Price further stated that “a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense.” Id. (quoting Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446 (1962)). In Price, the issue was whether the PFO charge must be included in the same indictment as the underlying substantive offense. In this case, the question is whether the Commonwealth could indict on the PFO charge during the trial on the underlying offense without warning, without the opportunity to defend, and without notice to Clark of the severity of the potential penalty should he be found guilty.

Essentially, the Commonwealth ambushed Clark during the trial on the substantive offense with a separate indictment for PFO. To have the evidence to secure the indictment, the Commonwealth was aware of the conviction prior to trial yet failed to provide discovery to Clark, including certified copies of the judgment of conviction. In the Commonwealth’s response to the discovery order, there was no mention of any exhibits, witnesses, or testimony relating to the PFO charges. It is unconscionable and does not comport with the basic notion of due process to return a PFO indictment while a defendant is being tried on the substantive charge. Not only did the Commonwealth leave Clark with no opportunity to prepare a defense to the PFO charge, but any possibility of an informed plea agreement was foreclosed.

At least one court has held that Oyler, quoted by our Supreme Court in Price, did not set the constitutional floor regarding enhancement notices. In Pelache v. State, 294 S.W.3d 248 (Tex.App.2009), the court distinguished Oyler noting that it was presented in a habeas corpus petition. Ultimately, the Texas Court held that basic due process requires that the defendant be informed of the nature of the charges he is accused and the consequences of a conviction before jeopardy attaches so that he is aware of the potential consequences of a conviction and to prepare a possible defense. Id. at 252. We agree with the view expressed by the Texas Court and hold that it is contrary to the basic notion of due process to return a PFO indictment during the trial on the underlying offense.

Because we are reversing and the issue may be presented to the trial court, we address whether Clark’s Texas conviction could be used to support a PFO charge.

PFO conviction and sentencing are governed by KRS 582.080, which states, in pertinent part:

(3) A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies, or one (1) or more felony sex crimes against a minor as defined in KRS 17.500, and now stands convicted of any one (1) or more felonies. As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided:
(a) That a sentence to a term of imprisonment of one (1) year or more or a sentence to death was imposed therefore.]

The Texas conviction which Clark challenges, assault dating violence, is a Class A misdemeanor. V.T.C.A. 22.01. Under Texas law, a misdemeanor is a crime with a maximum penalty of one year confinement in jail. V.T.C.A. 12.21. Although Kentucky uses the term “twelve months” in regard to defining a misdemeanor as opposed to “one year,” our distinction between a misdemeanor and a felony is identical to that codified in Texas. Offenses punishable by a year or more are defined as felonies. KRS 500.080(5). Offenses (other than traffic infractions) are defined as offenses punishable by no more than “a sentence to a term of imprisonment of ... twelve (12) months[.]” KRS 500.080(10). Thus, we are presented with a novel fact situation and a problematic application of KRS 532.080(3).

Clark’s Texas conviction resulted in the imposition of a sentence of precisely one year in the county jail. Under any interpretation of the Texas statute or the Kentucky statute, his prior Texas conviction was a misdemeanor. The issue then is whether KRS 532.080(3) can be read logically and consistent with the legislative intent to transform what is under all pertinent laws a misdemeanor into a felony for the sole purpose of sentencing enhancement. We conclude that such a result is absurd and now clarify the law as to the designation of a felony sentence of one year for purposes of KRS 532.080(3).

Clark is not the first to challenge the use of a conviction entered by a sister jurisdiction used as a basis for a PFO conviction. In Commonwealth v. Davis, 728 S.W.2d 532 (Ky.1987), the conviction used to support the PFO conviction was designated as a felony under Ohio law. The Court rejected Davis’s contention that it could not be used as a basis for the PFO conviction because the sentence imposed was for six months to five years probated for three years. The court deemed the maximum sentence that could have been imposed to be determinative under the Kentucky persistent felony offender statute.

The Court again addressed the issue in Ware v. Commonwealth, 47 S.W.3d 333 (Ky.2001), but on dissimilar facts than those now presented. Ware had two prior convictions designated as misdemeanors under North Carolina law; however, each carried a maximum penalty of two years. A sentence of eighteen months probated for three years was imposed on the first conviction and two years probated for three years was imposed on the second. Because both sentences were in excess of one year, the Court held despite the designation as misdemeanors under North Carolina law, the convictions could be used under the Kentucky persistent felony statute. Id. at 334.

The present case is unique in that Clark’s conviction is a misdemeanor offense under Texas and Kentucky law. Although the one-year sentence straddles the line between the length of imprisonment for a misdemeanor and that for a felony, the place of punishment is that for a misdemeanor. We are convinced that our General Assembly did not intend that a misdemeanor offense be arbitrarily converted into a felony classification for the purpose of a PFO conviction.

Our reasoning is consistent with the 1974 Commentary to KRS 532.080(3) as repeated in Ware:

Subsection (2) [now subsections (2) and (3) ] sets forth a definition of a previous felony conviction. It requires in subsection (a) that the previous offense must have been accompanied by a sentence of imprisonment for one year. This requirement seeks to account for the possibility of conviction from a state which has a distinction between felony and misdemeanor that is different from that used in this state. Thus, although such conviction is for an offense designated in that other state as a misdemeanor, it can be treated as a felony for purposes of this statute if it carried a penalty of one year or more. (Emphasis added).

Id. at 334. Except for the merely semantic distinction between “twelve months” and “one year,” Texas and Kentucky distinguish a felony and misdemeanor precisely the same based on the length and place of punishment. Thus, consistent with the commentary to KRS 532.080(3), although it was a one-year sentence, Clark’s conviction is a misdemeanor.

The result reached is consistent with our penal code. Our courts are frequently presented with penalty ranges that are applicable to different classifications of crimes. For instance, under our current statutory scheme, a five-year sentence can be a Class D felony, while another five-year sentence can be a Class C felony. The same is true for the one-year maximum penalty for a misdemeanor or the minimum one-year penalty for a felony. As a consequence, our courts impose felony one-year sentences and misdemeanor one-year sentences. To eliminate any possible confusion regarding whether a foreign conviction to which the defendant was sentenced to one year, we state the rule: A crime for which a maximum sentence of one year or less could be imposed is a misdemeanor and a crime for which the minimum sentence that could be imposed is one year or more is a felony. Therefore, if the sentencing range of a conviction which results in one year or less exceeds one year, it is a felony. Upon motion, the court shall conduct an analysis of the sentencing statute of the jurisdiction wherein the defendant was convicted. If the sentencing range imposes any sentence which exceeds one year, then that sentence is a felony. The one-year sentence imposed in Texas was the maximum sentence within the sentencing range of Mr. Clark’s conviction and, therefore, it is a misdemeanor.

Based on the foregoing, the judgment of conviction and sentence of the Jefferson Circuit Court is reversed.

LAMBERT, Judge, Concurs.

WINE, Judge, Concurs in Result Only in Part, Dissents in Part, and Files Separate Opinion.

WINE, Judge,

Concurring in Result Only in Part and Dissenting in Part:

Contrary to the Commonwealth’s position, it is clear from both the written record as well as the plea sheets which are included in the record, that Clark properly preserved two issues for our consideration, to wit: the denial of due process by the return of a second indictment charging him with the PFO I enhancement during trial; and the failure to prove that an out-of-state conviction qualified as a felony. During the plea colloquy, Clark’s defense counsel discussed with the trial judge the problem with defending against a new indictment returned during the second day of jury trial. Further, the plea agreement, signed by the Commonwealth’s Attorney, states in part, “[Defendant] waives right of appeal to trial. [Defendant] retains right to appeal PFO II.” Clearly, the Commonwealth could have limited the scope of the issues preserved for appeal. It is not necessary to engage in a palpable error analysis under Kentucky Rule of Criminal Procedure (“RCr”) 10.26, as the majority has done. Our Supreme Court has previously found that such language, even if inartfully drawn, is sufficient to preserve the issue for appellate review when a conditional plea is entered pursuant to RCr 8.09. Dickerson v. Commonwealth, 278 S.W.3d 145 (Ky.2009); Gabbard v. Commonwealth, 887 S.W.2d 547 (Ky.1994).

In support of his due process argument, Clark cites to Price, supra, which states, in part: ‘We interpret the PFO statute as requiring that if the Commonwealth seeks enhancement by proof of PFO status, the defendant is entitled to notice of this before the trial of the underlying substantive offense.” Id. at 750. The Court in Price further states:

... [D]ue process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal proceeding (Citation omitted).
Nevertheless, a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense.

Id. at 750, quoting Oyler v. Boles, 368 U.S. at 452, 82 S.Ct. at 503. Accordingly, the Court in Price, via the language of Oyler, indicated that the only requirements are reasonable notice and an opportunity to be heard. The Court in Price further stated “[i]f Price did need more time to adequately prepare his defense to the PFO charge in this case, he could have requested a continuance for this purpose. The record reflects that Price did not challenge the Commonwealth’s evidence on the PFO charge.” Id. at 750 (Emphasis added).

Likewise, Clark did not request a continuance from the trial court in order to prepare a defense to the PFO charge. A short continuance of the jury trial between the substantive and penalty phases could easily have been accomplished. Clark challenged the use of the Texas offense as a basis for the PFO charge. However, other than a general motion to dismiss the PFO indictment, he failed to request any relief whatsoever from the trial court. It would be inappropriate for us to now grant Clark relief which was never requested from the trial court.

The majority addresses the issue of initial trial discovery. In response to the trial court’s discovery order, the Commonwealth filed a response which itemized Clark’s prior criminal record. That information apparently did not include Clark’s previous, PFO-qualifying convictions. Presumably, Clark was aware of his own criminal record. He did not request further discovery of that issue and we must therefore assume that he was satisfied with what was provided by the Commonwealth. Furthermore, the record reveals that Clark’s prior convictions were mentioned by the Commonwealth, Clark, and Clark’s counsel, during several bond reduction hearings on May 24, 2007, November 7, 2007, and March 18, 2008. While the majority is of the opinion that the Commonwealth “ambushed” Clark, I do not agree. In fact, it appears that Clark’s trial counsel does not even share this belief. Such an allegation was not raised in Clark’s brief, and the record reveals that his counsel stated to the trial judge, “I do not allege that there was any intentional withholding or sandbagging by the Commonwealth. Quite the contrary, they have been forthcoming and forthright with me in this case.” There have been no allegations of prosecutorial misconduct, and I will not formulate such an argument where one does not exist.

I certainly agree that the Commonwealth’s timing of the PFO indictment was not good practice. Had the PFO indictment been returned prior to trial, both defense counsel and the Commonwealth would have had ample opportunity to adequately research the Texas penal code, most likely reaching the result set out below. The majority believes that the late indictment foreclosed Clark’s possibility of an informed plea agreement. However, there is no absolute right to a plea agreement. Such agreements are at the discretion of the Commonwealth. The majority’s opinion makes the presumption that, if the PFO indictment had come sooner, a different plea offer would have been made and accepted by Clark. Clark had not pled guilty before the PFO indictment was returned, nor did he plea unconditionally after being so charged, preferring rather to preserve his right to appeal. Such an opinion by the majority is purely conjecture and fails to rise to the level of reversible error. Therefore, I dissent from the majority opinion that Clark’s due process rights were violated.

I do concur, although for different reasons, with the majority’s opinion that the Commonwealth failed to prove that Clark’s 2003 conviction from Texas constituted a felony under Texas or Kentucky law.

Clark was convicted on September 15, 2003, in “The County Court at Law No. 4, Travis County, Texas”. A form styled, “Judgement (sic) of Community Supervision” states that Clark was found guilty of “Assault Dating Violence”, and further states that “the Court assesses punishment at confinement in the Travis County Jail for a period of (1) year and a fine of $2500 ...” While the form is pre-printed, the offense, the sentence of imprisonment, and the fine'are all handwritten.

The V.T.C.A., Penal Code § 22.01 defines various assaultive offenses, as follows:

(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
(2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if:
(A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or
(B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth;

Neither the Texas judgment nor the Commonwealth during Clark’s 2008 plea of guilty offered any proof that the aggrava-tors delineated in V.T.C.A., Penal Code § 22.01(a)(2)(A) or (B) applied. Additionally, pursuant to the V.T.C.A., Penal Code § 12.34, a person “adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.” Clark received only a one year sentence, clearly less than the punishment designated for Assault Dating Violence, third-degree felony. Finally, the V.T.C.A., Penal Code § 1.07, defines a felony as “an offense so designated by law or punishable by death or confinement in a penitentiary.” (Emphasis added.) The judgment of conviction sentenced Clark to confinement in the Travis County Jail.

In contrast, V.T.C.A., Penal Code § 12.21, directs that a Class A Misdemean- or is punishable by, “(1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement.”

Thus, by definition and application, Assault Dating Violence for which Clark was convicted, must be a misdemeanor under the Texas Penal Code.

For purposes of Kentucky’s PFO statute, a previous sentence must be for a “term of imprisonment of one (1) year or more or a sentence to death”, contemplating those offenses which are punishable by at least one year. The commentary to KRS 532.080 notes, “Thus, although such conviction is for an offense designated in that other state as a misdemeanor, it can be treated as a felony for purposes of this statute if it carried a penalty of one year or more.” (Emphasis added.) It is inconceivable that a clerical entry on the judgment from Travis County, Texas, stating “(1) year” could increase the punishment set by the Texas legislature which mandates the punishment “not exceed one year”.

Thus, I concur with the majority that Clark’s conviction as a PFO must be reversed as the Texas conviction was for a misdemeanor offense, and the previous conviction in Kentucky falls outside of the statutory time dictates of KRS 532.080.

      . See KRS 532.080.

      . Vernon’s Texas Statutes and Codes Annotated ("V.T.C.A.”) § 25.2292. Travis County Court at Law Provisions provide in part: "... (c) In addition to the jurisdiction provided by § 25.0003 and other law, the County Court at Law Number 4 of Travis County has concurrent jurisdiction with the district court in state jail felony and third degree felony cases involving family violence, as defined by Section 71.004, Family Code. The court shall give preference to cases in which family violence is alleged, including cases under Title 4, Family Code."

      . V.T.C.A., Family Code § 71.0021, states that, "(a) 'Dating violence’ means an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.”


source: Caselaw Access Project

author: LAURA DENVER STITH, Judge.

license: Public Domain

text:
    CITY OF LAKE SAINT LOUIS, Missouri, Appellant, v. CITY OF O’FALLON, Missouri, Respondent.
    No. SC 90790.
    Supreme Court of Missouri, En Banc.
    Oct. 26, 2010.

      Jeffrey T. McPherson, Jay A. Summer-ville and Jonathan D. Valentino, Armstrong Teasdale LLP, St. Louis, for Lake St. Louis.
    Kevin M. O’Keefe, Stephanie E. Karr, Curtis, Heintz, Garrett & O’Keefe PC, St. Louis, for O’Fallon.
   LAURA DENVER STITH, Judge.

The city of Lake Saint Louis appeals the trial court’s dismissal of its petition for declaratory judgment that certain disputed property is within its boundaries and that the city of O’Fallon’s attempted annexation of it is invalid. O’Fallon filed a motion to dismiss on the basis that Lake St. Louis had no authority to seek a declaratory judgment because the sole mechanism for determining whether its annexation of the disputed property was proper is to have the attorney general or prosecuting attorney of St. Charles County file a quo war-ranto action. The trial court granted O’Fallon’s motion to dismiss.

Lake St. Louis appeals, arguing that a municipality itself has the right to bring a declaratory judgment to determine its boundaries rather than being forced solely to rely on the discretion of the attorney general and the county’s prosecuting attorney as to whether to bring a quo warranto action on the municipality’s behalf.

This Court agrees. While individuals are not authorized to bring a declaratory judgment action to determine a boundary dispute as to a municipality, this limitation does not apply to a suit brought by the affected municipality, school district or other public corporation itself. To the extent State ex inf. Sanders, ex rel. City of Lee’s Summit v. City of Lake Lotawana, 220 S.W.3d 794 (Mo.App.2007), and State ex rel. Members of Bd. of Educ. of Everton R-III Sch. Dist. v. Members of Bd. of Educ. of Greenfield R-IV Sch. Dist., 572 S.W.2d 899 (Mo.App.1978), suggest to the contrary, they no longer should be followed. Accordingly, the judgment granting the motion to dismiss is reversed, and the case is remanded.

I. FACTUAL AND PROCEDURAL BACKGROUND

Lake St. Louis and O’Fallon are municipalities in St. Charles County. On March 26, 2009, Lake St. Louis filed a petition for declaratory judgment against O’Fallon in which Lake St. Louis alleged that, in 1982, it annexed certain property to the north of its prior boundary, making its northern boundary run along Interstate 70 in St. Charles County. The petition alleged that “O’Fallon disputes the northern boundary of Lake Saint Louis and claims to have subsequently annexed property, issued permits, and taken other actions within the boundary of Lake Saint Louis....” The petition did not state when O’Fallon undertook its allegedly improper annexation. It did aver that Lake St. Louis had a legally protectable interest in enforcing its ordinances, collecting and administering taxes, and protecting the rights of the city and its residents in the disputed area and asked the trial court to enter judgment declaring that the northern boundary of Lake St. Louis included the area that Lake St. Louis had annexed in 1982 and that O’Fal-lon had not legally annexed property within that boundary.

On April 30, 2009, O’Fallon filed a motion to dismiss in lieu of filing an answer. The motion asserted that Lake St. Louis was not entitled to bring a declaratory judgment action to determine its boundaries and that, in any event, the statute of limitations to do so had expired. The trial court granted O’Fallon’s motion to dismiss without stating on which ground it ruled. Following a decision by the Missouri Court of Appeals, Eastern District, this Court granted transfer. Mo. Const. Art. V, § 10.

II. STANDARD OF REVIEW

“[A] motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiffs petition.” Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 909 (Mo. banc 2002). A court reviews the petition “in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). In so doing, a court takes a plaintiffs averments as true and liberally grants plaintiff all reasonable inferences. It will not weigh the credibility or persuasiveness of facts alleged. Id. Accord, Reynolds, 79 S.W.3d at 909.

An appellate court reviews a trial court’s grant of a motion to dismiss de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). It will consider only the grounds raised in the motion to dismiss in reviewing the propriety of the trial court’s dismissal of a petition, and, in so doing, it will not consider matters outside the pleadings. Brennan By and Through Brennan v. Curators of the Univ. of Mo., 942 S.W.2d 432, 434 (Mo.App.1997). Here, the merits of Lake St. Louis’s declaratory judgment claims regarding its boundaries were not a ground of the motion to dismiss and, therefore, are not reached on this appeal. See Rule 55.27(a). This Court considers solely whether the grounds raised in the motion supported dismissal.

III. A SCHOOL DISTRICT MAY BRING A DECLARATORY JUDGMENT ACTION TO DETERMINE ITS PROPER BOUNDARIES

Lake St. Louis argues that the filing of a declaratory judgment action is an appropriate mechanism by which a municipality can resolve a boundary dispute. O’Fallon disagrees, arguing that Lake St. Louis ultimately is seeking to oust O’Fallon from the contested land and, therefore, the exclusive remedy is through a writ of quo warranto. As it is undisputed that only the attorney general or a prosecuting or circuit attorney can bring an action in quo warranto, Rule 98.02, O’Fallon argues that Lake St. Louis has no authority to seek or obtain the relief it sets out in its petition.

For the reasons noted below, while O’Fallon is correct that individuals are not permitted tó bring declaratory judgment actions seeking to determine boundaries or to oust a municipal or other public corporation from disputed territory, municipalities, school districts and other public corporations are permitted to bring such actions.

A. Individuals May Not Bring Quo Warranto or Declaratory Judgment Actions to Oust Another from Disputed Territory

Rule 98.02 provides that, “(a) Proceedings in quo warranto shall be by a civil action in which the party seeking relief is relator and the person against whom such relief is sought is respondent, which action shall be brought in the name of the State of Missouri.” See also § 531.010 et seq., RSMo 2000. To bring an action in quo warranto the “attorney general, prosecuting attorney, or circuit attorney may file an information ex officio, by virtue of the power of his [or her] office without leave of court when such an action would serve the public interest.” State ex inf. Graham v. Hurley, 540 S.W.2d 20, 22 (Mo. banc 1976). The purpose of the action is to determine whether there has been a usurpation of “any office or franchise” and, if so, pray the court “oust” any such illegal holder. § 581.010; § 581.050.

An action in quo warranto may be brought by the attorney general or prosecutor on behalf of the state directly or at the relation of another, Rule 98.02(b); Rule 98.04, including an individual who seeks to determine the legality of an annexation.

B. An Individual May Not File for Declaratory Relief to Resolve a Boundary Dispute

“A declaratory judgment provides guidance to the parties, declaring their rights and obligations or otherwise governing their relationship,” Shipley v. Cates, 200 S.W.3d 529, 534 (Mo. banc 2006), and generally may be granted when a court is presented with:

(1) a justiciable controversy that presents a real, substantial, presently-existing controversy admitting of specific relief, as distinguished from an advisory decree upon a purely hypothetical situation; (2) a plaintiff with a legally pro-tectable interest at stake, “consisting of a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief;” (3) a controversy ripe for judicial determination; and (4) an inadequate remedy at law.

Mo. Soybean Ass’n v. Mo. Clean Water Comm’n, 102 S.W.3d 10, 25 (Mo. banc 2003).

Individuals sometimes have sought to bypass the prohibition on an individual bringing a quo warranto action by seeking the same relief in a suit for an injunction or for declaratory judgment. Spiking Sch. Dist. No. 71, DeKalb Cnty. v. Purported “Enlarged Sch. Dist. R-II, DeKalb Cnty., Mo.”, 362 Mo. 848, 245 S.W.2d 13, 15 (1952), provides a good example. Certain individual residents of a school district sought a declaratory judgment that a new and enlarged school district was invalidly formed and that their previous school districts continued to exist.

In approving dismissal of their petition, this Court stated that “a declaratory judgment action is not available to the individual plaintiffs who are residents, patrons and taxpayers of the reorganized district” because “they are only indirectly affected by the lack of de jur[e] existence of the reorganized district and the attempted action by them is in the nature of a collateral attack.” Id. at 21. It prohibited such collateral attacks by individuals because individuals necessarily are only indirectly affected by whether a public or municipal corporation has a de jure existence. If one resident could bring suit, then all could, and “it is intolerable that, every time a city sues on an account, it must first establish its right to exist.” Id. (internal citations and quotations omitted).

For these reasons, “[t]he law is settled that when a public body has, under color of authority, assumed to exercise the powers of a public corporation of a kind recognized by law, so as to become at le[a]st a de facto corporation, the validity of its organization can be challenged only by direct proceedings in quo warranto by the state through its officers designated in [section] 581.010, and cannot be challenged by individuals.” State ex rel. Junior Coll. Dist. of Sedalia v. Barker, 418 S.W.2d 62, 65 (Mo. banc 1967). As a matter of public policy, suits by individuals are not permitted due to “the importance of stability and certainty in such matters, and the serious consequences which might follow if the existence of a public corporation could be called in question by persons who do not have an interest in the matter separate and distinct from that of the State itself.” Id. at 65-66 (internal citations and quotations omitted). “[C]orporate franchises are grants of sovereignty only, and, if the state acquiesces in their usurpation, individuals will not be heard to complain.” Id. (internal citations and quotations omitted).

C. Municipalities May Bring Declaratory Judgment Actions to Determine their Boundaries

Lake St. Louis does not disagree with the general rule that quo warranto offers the exclusive means of relief for individuals; they may not sue in their own right and may act as relators only in an action brought in the name of the state by the attorney general or county prosecutor. But, Lake St. Louis argues, this Court never has held that the sound reasoning underlying this rule applies when the dispute is between two municipalities or other public corporations concerning which one of them has the valid claim over a disputed area. In such cases, it suggests, a public corporation is the party directly affected by the territorial dispute. While the attorney general and prosecutor also may bring a suit in quo warranto on behalf of such a governmental entity, whether they choose to do so is within those officials’ discretion. The governmental entity, therefore, as the party directly affected, should have the right instead to bring a declaratory judgment action in its own name to vindicate its directly affected interest in the office or territory.

This Court has recognized on at least two occasions that the question of whether a public school district can bring a declaratory judgment action to resolve a territorial dispute is not resolved by the cases holding that individuals are not authorized to bring such actions. In 1952, Spiking noted the general rule regarding individuals but then found that because the plaintiffs in the action before it were not actually existing school districts (they had been dissolved prior to suit being brought):

It is unnecessary to determine whether, under particular circumstances, an alleged existing common school district may by a declaratory judgment action directly attack the validity of an alleged reorganization proceeding which purports to destroy said district by consolidation or reorganization with other districts.

245 S.W.2d at 21. In 1967, while reaffirming the general rule that an individual is not authorized to bring a declaratory judgment action to challenge the validity of a district boundary and, instead, suit must be brought by the state in a quo warranto action, this Court similarly recognized that this holding was not dispositive of the question whether such a suit could be brought by the district itself, stating:

Compare: Walker Reorganized School District R-4 v. Flint et al, Mo.App., 803 S.W.2d 200, 205-206(2), cited by respondent, holding that one school district can maintain an action against another school district for a judgment declaring that defendant district had become a part of plaintiff district by annexation. In so holding the court referred specifically to page 21 of the Spiking case (245 S.W.2d and noted “... that the Supreme Court has been careful to leave the door open for the decision that the cases in which individuals are endeavoring to attack the validity of an annexation or a reorganization through a proceeding other than by quo warranto in the name of the State are not necessarily controlling where two school districts are claiming the same territory.” ... See also: Reorganized School District R-I of Crawford County v. Reorganized School District R-III of Washington County, Mo.App., 360 S.W.2d 376, 378(1-2).

Barker, 418 S.W.2d at 65 n. 1.

Walker Reorganized Sch. Dist. R-4 v. Flint, one of the cases cited in the Barker footnote, specifically noted that Spiking had left “the door open” for declaratory judgment actions when “two school districts are claiming the same territory.” 303 S.W.2d 200, 206 (Mo.App.1957). Walker walked through the door, holding that the public policy concerns behind prohibiting individuals from bringing an independent action had no application in suits involving public school districts. It held that because these municipal bodies’ interests are affected directly by a dispute over their own boundaries, they should be permitted to bring a declaratory judgment action:

Both plaintiff and intervenor are public school districts. Each in its public corporate capacity is claiming the same territory, the Coal Creek District.... Both plaintiff and intervenor have a direct interest in the matter. There is no threat of harassment by individuals questioning the validity of a school district. To permit plaintiff and interve-nor, in a declaratory judgment action, to determine the question of which took the first valid step to acquire the Coal Creek District does not appear to violate any of the reasons for the rule that an individual cannot question in legality of the organization of a school district by a declaratory judgment action, but must proceed, if at all, by quo warranto in the name of the State. Since the reason for that rule fails as applied to this case we do not apply the rule.

Id. at 205-06 (emphasis added).

O’Fallon nonetheless urges this Court to close the door left open in Spiking by holding that the prohibition on declaratory judgment actions by individuals also applies to school districts and other public corporations. In support, it cites State ex rel. Members of Bd. of Educ. of Everton R-III Sch. Dist. v. Members of Bd. of Educ. of Greenfield R-IV Sch. Dist., 572 S.W.2d 899 (Mo.App.1978), and State ex inf. Sanders, ex rel. City of Lee’s Summit v. City of Lake Lotawana, 220 S.W.3d 794 (Mo.App.2007). This Court rejects that invitation.

While Everton did conclude that school district boundaries could “only be determined in quo warranto,” 572 S.W.2d at 900, it cited only State ex inf. Dalton ex rel. Hough v. Eckley, 347 S.W.2d 704 (Mo. banc 1961), and State ex rel. Purdy Reorganized Sch. Dist. No. II v. Snider, 470 S.W.2d 805, 809 (Mo.App.1971), to support that conclusion.

Neither case involved a declaratory judgment action brought by one school district or municipality against another, however, nor did either offer any reasoning why such declaratory judgment suits would not be proper. Moreover, Dalton merely noted (as this Court reaffirms today) that a suit in quo warranto is “a proper remedy to test the jurisdiction of a school board over territory claimed by another school district,” 347 S.W.2d at 707 (emphasis added). It did not address whether other procedural alternatives also were available.

Lake Lotawana, the other case involving a public corporation relied on by O’Fallon, cites only to Everton and a case involving a suit by individuals, State ex rel. Kansas City v. Harris, 357 Mo. 1166, 212 S.W.2d 733 (1948), and is similarly unpersuasive. Indeed, Lake Lotawana fails to cite Walker, Cranford, Spiking or Barker and offers no independent reasons why a declaratory judgment action should not be permitted where a municipality or school district seeks a declaratory judgment as to its own boundaries.

This Court finds WalkePs reasoning more persuasive. To require a directly affected municipality or other similar public corporation to rely on a third party— the attorney general or a county prosecutor — to bring suit over its very boundaries would risk leaving it without a remedy if the attorney general and prosecutor exercise their discretion not to act. While this is appropriate where an individual litigant is involved, to avoid the multiplicity of suits that otherwise would ensue and to ensure that spurious claims are not asserted in an effort to adversely affect the public body, such reasoning does not apply to the municipality or other public corporation itself, as it has a direct and vital interest in determining its own boundaries.

To the extent Everton and Lake Lotawana hold otherwise, they no longer should be followed. While they are correct that a quo warranto action by the attorney general or prosecuting or circuit attorney at the relation of the public corporation is proper to determine a boundary dispute such as this under Rule 98.02, so too is a declaratory judgment action brought directly by the municipality or other public corporation itself.

D. The Statute of Limitations

The motion to dismiss filed below also raised statute of limitations and laches defenses. Because the court failed to state the reasons for dismissal, this Court is unable to determine whether the dismissal was based on those grounds or on the ground principally relied on, that a municipality may not bring a declaratory judgment action. Allegations based on the statute of limitations or laches are in the nature of affirmative defenses and, as such, usually are raised in the answer. Lynch, 260 S.W.3d at 837. Here, however, O’Fallon brought its motion to dismiss in lieu of filing an answer. At this point, therefore, this Court can look only to the petition to determine whether dismissal was proper based on laches or the statute of limitations. Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995). The petition alleges only that, between 1982 and the present, O’Fallon purported to annex certain property that in 1982 had been annexed by Lake St. Louis. Because the petition does not show on its face that the action is barred by the statute of limitations or laches, it would have been error to dismiss on these grounds.

IV. CONCLUSION

Dismissal of Lake St. Louis’s petition was unwarranted. The trial court’s judgment is reversed, and the case is remanded.

All concur.

      . On October 31, 2008, O’Fallon’s city counselor stated in a letter to St. Charles County officials that the city disputed the northern boundary of Lake St. Louis and believed adjudication of the dispute between Lake St. Louis and O’Fallon as to their respective boundaries should be resolved in court.

      . The portion of section 531.010 authorizing one circuit court to exercise authority over another judge of an adjoining county was found to violate Article V, Section 4(1) of the Missouri Constitution in State v. Kinder, 89 S.W.3d 454, 458-59 (Mo. banc 2002).

      . See e.g., Stale ex inf. Ashcroft, ex rel. Curators of Univ. of Mo. v. Town of Weldon Springs Heights, 582 S.W.2d 661 (Mo. banc 1979); State ex rel. Dalton ex rel. Stonum v. Reorganized Dist. No. II, Clinton Cnty., 307 S.W.2d 501, 502 (Mo. banc 1957).

      . Reorganized. Sch. Dist. R-I of Crawford Cnty. v. Reorganized Sch. Dist. R-III of Washington Cnty., 360 S.W.2d 376, 378 (Mo.App.1962), also cited by this Court in Barker, followed Walker in holding a declaratory judgment was proper, stating:
      Ordinarily matters affecting the legality of the organization of a school district cannot be inquired into except by quo warranto in the name of the state. This action, however, is between two school districts.... [A] declaratory judgment action will lie in a dispute such as this between two school districts.

      . While Purdy did state in dicta that the rights of school districts contesting the same territory should be settled in quo warranto, 470 S.W.2d at 809, Purdy cited only Dalton and Spiking to support its statement. As just noted, Dalton does not so hold and, as discussed in the text, Spiking specifically left open the question whether the reasoning for denying individuals the right to bring a declaratory judgment action would apply to school districts.

      . The suits by individuals that O’Fallon also cites are not on point for the reasons noted above. See, e.g., Cherry v. City of Hayti Heights, 563 S.W.2d 72 (Mo. banc 1978); White v. City of Columbia, 461 S.W.2d 806 (Mo. banc 1970).


author: PER CURIAM.

text:
    Marlow JOHNSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93301.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 14, 2010.
    Alexandra Johnson, Missouri Public Defender Office, St. Louis, MO, for Appellant.
    Chris Foster, Attorney General, Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Marlow Johnson (Johnson) appeals from the motion court’s judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. In his amended motion, Johnson claims that his trial counsel was ineffective for failing to call a witness at trial and for failing to object to an alleged instructional error. Johnson also claims that his appellate counsel was ineffective for failing to raise this alleged instructional error as an issue on appeal. We affirm the motion court’s judgment.

We have reviewed the briefs of the parties and the record on appeal and find that Johnson is entitled to no relief on appeal. An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision.

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


author: GARY W. LYNCH, Judge.

text:
    STATE of Missouri, Plaintiff-Appellant, v. James Douglas STORER, Defendant-Respondent.
    No. SD 30391.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 5, 2010.
    Brian Keedy, Prosecuting Attorney, and Aaron Koeppen, Assistant Prosecuting Attorney, Camdenton, MO, for Appellant.
    Karie Comstock, District Public Defender, Lebanon, MO, for Respondent.
   GARY W. LYNCH, Judge.

The State appeals an order dismissing with prejudice four of six counts in a felony information filed against James Douglas Storer (“Defendant”). Finding that it is premature, we dismiss the State’s appeal.

Factual and Procedural Background

Previously, in another case, Defendant was charged with three counts of statutory sodomy in the first degree and one count of forcible sodomy, all involving the same victim. That case was tried before and submitted to a jury in February 2009. Following several hours of the jury’s deliberation without being able to reach a verdict, the trial court declared a mistrial.

Fourteen days later, the State entered a nolle prosequi of all four counts; before doing so, the State notified Defendant of its intent to subsequently re-file the charges. No leave of court was sought by the State or granted by the trial court. Thereafter, the State filed in this case an information against Defendant in which the first four counts mirrored the four counts in the prior case and which, evidently as authorized by Rule 23.05, joined two additional counts involving sexual offenses against a different minor victim.

Defendant filed a motion to dismiss the first four counts, arguing that to allow the State to re-litigate those charges would constitute double jeopardy. Following a hearing on that motion, the trial court entered an order by docket entry in favor of Defendant, dismissing with prejudice the first four counts of the information. The two additional counts pertaining to the new victim, however, remain pending. The State, nevertheless, now appeals the dismissal of the first four counts.

Analysis

Defendant claims that this appeal is premature in that it does not satisfy any of the requirements of Section 547.200 that would grant us statutory authority to entertain an appeal in this case in its current posture. We agree. See State v. Thomas, 801 S.W.2d 504, 505 (Mo.App.1991) and State v. Wakefield, 689 S.W.2d 809, 812 (Mo.App.1985) (appeals were premature where one count in the information remained pending).

Section 547.200 governs the circumstances under which the State may take an appeal. State v. Smothers, 297 S.W.3d 626, 630 (Mo.App.2009). Subsection 5 of that statute requires “the Supreme Court of Missouri to issue rules to facilitate the disposition of appeals made pursuant to that section.” Id. Therefore, appeals taken in consonance with section 547.200 must also conform to Rules 30.01 and 30.02, which govern appeals in criminal cases. Id. (citing State v. Burns, 994 S.W.2d 941, 942 (Mo. banc 1999)).

Rule 30.01 provides that, in a criminal case, a party shall be entitled to an appeal after the rendition of final judgment. Rule 30.02 provides the procedure for interlocutory appeals when such appeals are “permitted by law.” Section 547.200.1 lists circumstances when the State is permitted by law to pursue interlocutory appeals: when an order or judgment (1) quashes the arrest warrant; (2) finds that the accused lacks the capacity or fitness for trial; (3) suppresses evidence; or (4) suppresses a confession or an admission.

Smothers, 297 S.W.3d at 630. If an order does not fall into one of the four categories in section 547.200.1, then it must be a final judgment in order for the State to have the ability to take an appeal. Burns, 994 S.W.2d at 942-43; section 547.200.2.

The State contends here that the dismissal order effectively quashes the arrest warrant, thus falling within the first category of section 547.200.1. We disagree. Upon the filing of the complaint in this case, a warrant for Defendant’s arrest was issued by the court. Defendant has been incarcerated since his arrest upon the execution of that warrant. Therefore, the continued pendency of two additional counts and Defendant’s continued incarceration pursuant to the arrest warrant issued in this case necessarily refutes the State’s contention. The State makes no contention that the order at issue falls into any one of the three remaining categories in section 547.200.1 authorizing an interlocutory appeal. Thus, in the absence of any statutory authority for an interlocutory appeal, the State may only take an appeal from the dismissal order if it is a final judgment. See section 547.200.2.

“A trial court’s judgment is final for purposes of conferring appellate jurisdiction if the judgment ‘disposes of all disputed issues in the case and leaves nothing for future adjudication.’ ” Burns, 994 S.W.2d at 942 (quoting Williams v. State, 954 S.W.2d 710, 711 (Mo.App.1997)). This generally occurs when a sentence is entered and imposed. Burns, 994 S.W.2d at 942. However, “in a criminal case, a judgment is [also] final when the trial court enters an order of dismissal or discharge of the defendant prior to trial[,] which has the effect of foreclosing any further prosecution of the defendant[.]” Id.

Although the trial court in this case dismissed the first four counts of the information with prejudice, it left the two additional counts pending against Defendant. The resolution of these two charges is dependent upon “future adjudication” and “further prosecution of the defendant” such that the judgment, therefore, is not final for purposes of appeal. See Thomas, 801 S.W.2d at 505; Wakefield, 689 S.W.2d at 812.

Decision

Because the appealed dismissal order is not subject to an interlocutory appeal and is not a final judgment, we have no statutory authority to entertain the State’s appeal and, accordingly, it is dismissed.

BARNEY, P.J., and BURRELL, J., concur.

      . All rule references are to Missouri Court Rules (2010), unless otherwise indicated.

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


text:
    STATE of Missouri, Appellant, v. Mareon L. BAILEY, Respondent.
    No. ED 93921.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 5, 2010.
    Gwenda Robinson, St. Louis, MO, for appellant.
    Shaun Mackelprang, Jamie Rasmussen, co-counsel, Jefferson City, MO, for respondent.
    Before KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J., and NANNETTE A BAKER, J.
   ORDER

PER CURIAM.

Mareon Bailey (“Defendant”) was convicted by a jury of two counts of robbery in the first degree, Section 569.020 and two counts of armed criminal action, Section 571.015. The trial court sentenced Defendant to twenty-two years on each count, to be served concurrently. On appeal, Defendant claims two points. First, Defendant claims that the trial court erred and abused its discretion in granting the State’s motion in limine prohibiting him from presenting testimony that someone else matched the witness’ physical description of the robber. Second, Defendant claims that the trial court erred in overruling his counsel’s objection to the witness’ in-court identification of Defendant because the identification procedures were so suggestive as to create a substantial likelihood of misidentification.

We have reviewed the briefs of the parties and the record on appeal. The findings and conclusions of the trial 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. 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 30.25(b).

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


author: WILLIAM W. FRANCIS, JR., Judge.

text:
    Donna HOLLOWAY, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.
    No. SD 30248.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 21, 2010.

      Chris Koster, Attorney General and Jonathan H. Hale, Special Assistant Attorney General, Jefferson City, for Appellant.
    John M. Albright, Poplar Bluff, for Respondent.
   WILLIAM W. FRANCIS, JR., Judge.

On February 25, 2009, the Director of Revenue (“the Director”) revoked the driving privileges of Donna Holloway (“Respondent”) pursuant to section 577.041 after she refused to submit to a chemical test to determine her blood alcohol content (“BAC”). On August 17, 2009, a post-revocation hearing was conducted and the trial court found in favor of Respondent and ordered the Director to remove the revocation from her driving record. This appeal followed. We affirm the judgment of the trial court.

Facts and Procedural History

Corporal Barry Matthews (“Corporal Matthews”), of the Missouri State Highway Patrol, worked the overnight shift from the evening of February 9, 2009 until 3:00 a.m., on February 10, 2009. By 11:30 a.m., on February 10, he was back on duty for a court appearance that lasted approximately two hours. Later that same day he began an evening shift. At 10:30 p.m., near the end of his shift, he was en route to his residence when he observed a vehicle in the median of Highway U.S. 67 and stopped to investigate. It was raining at the time.

When Corporal Matthews approached the passenger side of the vehicle he found Respondent sitting in the driver’s seat with the engine running. He told her to roll down the window. Respondent appeared confused and lowered both back windows before she finally found the button to lower the passenger-side window where Corporal Matthews was standing. Since Respondent did not appear to be injured, Corporal Matthews requested that she exit the vehicle. Respondent smelled strongly of alcohol, had significant difficulty walking, and could not stand without swaying. Because it was muddy in the median, Corporal Matthews assisted Respondent up to the shoulder of the road. At one point, he had to stop her from walking into traffic.

Corporal Matthews then administered the Horizontal Gaze Nystagmus (“HGN”) test and Respondent exhibited all six indicators of intoxication. No other standardized field sobriety tests (SFST’s) were performed, and no other investigation was completed prior to Respondent’s arrest. Based on Corporal Matthews’ observations — the unsteady walking, the swaying while standing, the HGN results, the odor of alcohol, bloodshot and watery eyes, confused speech, and the totality of the circumstances — he was absolutely certain Respondent was intoxicated and arrested her for driving while intoxicated (“DWI”). Respondent’s arrest was completed in a short period of time after Corporal Matthews’ initial contact with her.

Corporal Mike Slaughter (“Corporal Slaughter”) arrived at the scene, but remained in his vehicle until Corporal Matthews arrested Respondent. Following the arrest, Respondent was turned over to Corporal Slaughter to complete the investigation and process Respondent since Corporal Matthews was tired from his demanding work schedule and “due off the next day.” Corporal Slaughter transported Respondent to the sheriff’s department where he read her Missouri’s implied consent law. Respondent requested an opportunity to speak with an attorney and was provided approximately twenty minutes to do so. Corporal Slaughter again advised Respondent of the implied consent law and requested a breath test and a blood sample. She refused both requests. Corporal Slaughter signed and completed an Alcohol Influence Report (“AIR”) for Respondent.

The Director notified Respondent that her license would be revoked on February-25, 2009, pursuant to section 577.041. Respondent subsequently filed a petition for a post-revocation hearing.

On August 17, 2009, at the hearing of this matter, Corporal Matthews testified that out of concern for Respondent’s safety, and due to the rainy weather conditions, he did not perform additional SFST’s. He did not carry a portable breathalyzer. He testified that he asked Respondent why she was in the median, but could not recall her answer. Further, he did not remember if he asked Respondent if she had been drinking. There was also no evidence that Corporal Matthews ever requested her license, registration, or proof of insurance.

Corporal Matthews also testified regarding the HGN test. He admitted his initial HGN training preceded the National Highway Traffic Safety Administration’s (“NHTSA”) approval of the test, but could not recall whether or not he had received any training on the HGN exam after NHTSA standardized the exam. He acknowledged the possibility that his HGN test training was designed to indicate the probability an individual would have a BAC over .10 percent if they had all six indicators. The legal presumed limit at the time of Respondent’s arrest was only .08 percent BAC. He did not know the accuracy of the HGN examination, how many times each sequence of the HGN exam should be performed, nor how far from the test subject’s eyes the visual stimulus should be held. He testified that the standardized procedure could be administered in different ways on different people. Corporal Matthews testified that even without the HGN results, his conclusion was that Respondent was intoxicated.

At the hearing, Corporal Slaughter testified he observed most of the indicia of intoxication that Corporal Matthews observed, but that his observations were after Respondent was placed under arrest and would not have any effect with regard to probable cause for the arrest. On cross-examination, Corporal Slaughter testified the HGN test takes just a little over a minute to administer, and a DWI arrest could possibly be completed in less than two minutes. Corporal Slaughter also testified regarding the AIR he completed for Respondent. He acknowledged the observations in the report were from him and Corporal Matthews. According to the AIR, the time of initial contact was “2332” and the time of the arrest was “2335.” Corporal Slaughter agreed that this time frame could correspond to three-plus minutes or just a minute and a few seconds, depending upon the location of the second hand.

Respondent contested all of the Director’s evidence during cross-examination. She also testified that she spoke to an attorney and was given two opportunities to consent to a breath test but refused both.

The trial court ordered the Director to reinstate Respondent’s driving privileges, based upon the sole finding that the Director failed to produce evidence of probable cause for the arrest. Specifically, the trial court found that: (1) “the arrest could have occurred in as little as one minute and some odd seconds”; (2) the HGN test was not in compliance with NHTSA standards and, therefore, was unreliable; and (3) the AIR was a memorialization of Corporal Slaughter’s post-arrest observations. The Director filed a timely Notice of Appeal.

The Director contends the trial court erred in reinstating Respondent’s driving privileges and concluding there was no probable cause to arrest Respondent for DWI because substantial evidence in the record supported a finding of probable cause. Respondent contends the trial court correctly determined there was not sufficient probable cause. The sole issue for review is whether the trial court was persuaded the officer had reasonable grounds to believe Respondent was driving while intoxicated.

The Statutory Framework

The only three issues to be decided at a post-revocation hearing are: “(1) whether or not the person was arrested or stopped; (2) whether the officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition; and (3) whether or not the person refused to submit to the test.” Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002); § 577.041.4. “If the court determines any issue not to be in the affirmative, the court shall order the director to reinstate the license or permit to drive.” § 577.041.5.

At the hearing, the burden of proof rests on the Director. Hinnah, 77 S.W.3d at 620. The Supreme Court of Missouri has explained:

When the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party’s uncontradicted or uncontroverted evidence. Bakelite Co. v. Miller, 372 S.W.2d 867, 871 (Mo.1963). If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party. Id. ‘Generally, the party not having the burden of proof on an issue need not offer any evidence concerning it.’ Stiff v. Stiff, 989 S.W.2d 623, 628 (Mo.App.1999).

White v. Director, 321 S.W.3d 298, 305 (Mo. banc 2010).

Standard of Review

The trial court’s probable cause determination is reviewed in a two-step analysis: (1) a determination of the historical facts; and (2) the application of the law to those facts. White, 321 S.W.3d at 309-11. In the first part of the analysis, we review the probable cause determination under an abuse of discretion standard and give deference to the inferences the trial court makes from historical facts, including any credibility determinations. White, 321 S.W.3d at 310-11.

Only if the trial court’s judgment is clearly erroneous will an appellate court reverse. This standard of review gives appropriate deference to the trial court’s ability to weigh the credibility of the witnesses, and acknowledges the inability of an appellate court to determine credibility from the lifeless pages of a record. Thus, if the trial court’s ruling is plausible in light of the record viewed in its entirety, this Court ‘may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’

Id. (quoting State v. Milliorn, 794 S.W.2d 181, 188 (Mo. banc 1990)).

In the second step, the Court must determine, under de novo review, if these historical facts satisfy the relevant statutory standard. White, 321 S.W.3d at 310-11.

Further, “[i]n reviewing a particular issue that is contested, the nature of the appellate court’s review is directed by whether the matter contested is a question of fact or law.” White, 321 S.W.3d at 308. Questions of law are reviewed de novo, while deference is given to the fact-finder when reviewing questions of fact. Id. “When the facts relevant to an issue are contested, the reviewing court defers to the trial court’s assessment of the evidence.” Id.

The Director’s evidence was contested in this case. The Respondent cross-examined and challenged the evidence submitted by the Director. See White, 321 S.W.3d at 308-09 (finding a party can contest evidence by cross-examination or by pointing out internal inconsistencies in the evidence). There were no formal findings of fact or conclusions of law requested, pursuant to Rule 73.01; however, the trial court did recite certain findings in its judgment indicating it did not find some of the evidence credible and adequate to support a finding of probable cause.

Analysis

Probable cause exists when a police officer observes illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the motorist. York v. Director of Revenue, 186 S.W.3d 267, 270 (Mo. banc 2006), overruled on other grounds by White, 321 S.W.3d at 301-03. The probable cause analysis is an objective standard and requires consideration of all the information in the officer’s possession prior to arrest. Guhr v. Director of Revenue, 228 S.W.3d 581, 585 n. 3 (Mo. banc 2007), overruled on other grounds by White, 321 S.W.3d at 301-03; Hinnah, 77 S.W.3d at 621. The court must assess the facts by viewing the situation as it would have appeared to a prudent, cautious, and trained police officer. York, 186 S.W.3d at 270. SFST’s are not mandatory, but merely aid the officers’ probable cause determination. Chancellor v. Lohman, 984 S.W.2d 857, 858 (Mo.App. W.D.1998) (SFST’s not performed for safety reasons); Hunt v. Director of Revenue, 10 S.W.3d 144, 146 (Mo.App. E.D.1999) (SFST’s not performed due to weather conditions).

Based upon our review of the record in this case, the trial court found the short time between the initial contact and arrest significant on whether it was persuaded on the requirement of probable cause. The short time frame alleged was only one of multiple factors calling into question the existence of probable cause.

The trial court also questioned the propriety of Corporal Matthews’ administration of the HGN test and determined it was not in compliance with NHTSA standards. This was reasonable considering Corporal Matthew’s testimony that his HGN test training was received prior to NHTSA approval of the test and when the presumed limit of intoxication was .10 percent. Moreover, he could not recall if he had received any training on the HGN exam after it was standardized by NHTSA. Further supporting this finding was his testimony that the standardized procedure could be administered in different ways on different people, that he did not know how many times each sequence of the HGN exam was performed, nor how far from the test subject’s eyes the visual stimulus should be held. These facts reasonably call into question the reliability of the HGN test administered to Respondent.

The trial court’s judgment questioned the credibility of a portion of Corporal Matthews’ observations because he could not recall Respondent’s answers to questions inquiring why she was in the median and whether she had anything to drink. He did not observe her operating the vehicle. Significantly, the trial court correctly noted the AIR was only signed by Corporal Slaughter, who admitted his observations were only post-arrest and would not have any effect with regard to establishing probable cause for the arrest. The judgment reflects the trial court’s careful consideration of the testimony and we give deference to the trial court’s inferences on witness credibility.

The trial court did not believe the officers’ testimony enough, or enough of their testimony, to find that the Director carried her burden of proof. We defer to that credibility assessment, which is not to say that the same testimony would not support revocation if believed. White properly instructs us to respect trial court credibility decisions, which here compel us to affirm.

The Director also argues that the trial court misapplied the law by its reliance on York and Hinnah. However, the argument presented is not actually one of misapplication of the law; rather the Director simply argues the facts in York and Hin-nah are distinguishable from this case. We disagree.

Whether probable cause exists always depends on the particular facts of the case.

Probable cause to arrest exists when the arresting officer’s knowledge of the particular facts and circumstances is sufficient to warrant a prudent person’s belief that a suspect has committed an offense.... There is no precise test for determining whether probable cause exists; rather, it is based on the particular facts and circumstances of the individual case.

White, 321 S.W.3d at 312 (quoting Guhr, 228 S.W.3d at 584-85).

The trial court recognized in York that our supreme court held there was not probable cause to arrest when the only uncontroverted indicia of intoxication was the odor of intoxicants; watery, glassy and bloodshot eyes; and an admission that York drank one or two beers. The trial court also noted the arresting officer’s testimony was strained when only three minutes elapsed between the time he made contact with York and the time of arrest. Considering the facts in the present case, it was not unreasonable for the trial court to compare the facts of this case with those in York.

The trial court also reasonably relied on Hinnah, where our supreme court held there was not probable cause for an arrest when the officer observed Hinnah in a truck with the engine running parked along side the interstate. Hinnah was in the passenger seat and upon contact, the officer determined there was a strong odor of alcohol on his breath; his eyes were watery, glassy and bloodshot; and he had difficulty maintaining his balance. The trial court could reasonably conclude there was comparable, or even less information available to Corporal Matthews than to the arresting officer in Hinnah.

In considering the record in its entirety, including the timing of the arrest, uncertain reliability of the HGN test results, Corporal Matthews’ inability to recall key facts prior to the arrest, the fact that Corporal Slaughter’s observations were largely post-arrest, and the standard of review, we find the trial court’s judgment and view of the evidence plausible. This Court defers to the trial court’s view of the evidence and will not second-guess the trial court’s judgment on contested facts. White, 321 S.W.3d at 312-13. The trial court was free to believe or disbelieve any or all of the contested evidence and find no probable cause based on its determination and credibility of the Director’s evidence. The trial court was not persuaded the officer had reasonable grounds to believe Respondent was driving while intoxicated. The trial court’s determination that there was no probable cause was not an abuse of discretion. The trial court’s judgment does not shock the sense of justice or indicate a lack of careful consideration.

That judgment is affirmed.

SCOTT, C.J., and BATES, J., concur.

      . All statutory references are to RSMo Cum. Supp.2009, unless otherwise indicated.

      . Any person in Missouri who drives on public highways is deemed to have consented to a "chemical test” in order to determine the alcohol or drug content of the driver’s blood after being 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." § 577.020.1. If the driver refuses a chemical test after being arrested, the officer is to forward a sworn report to the director that includes a statement that the officer had reasonable grounds to believe the individual was driving while intoxicated and refused a chemical test. § 577.041.2. The director is then required to revoke the individual’s driving privileges for one year. § 577.041.3; see Hager v. Director of Revenue, 284 S.W.3d 192, 193 (Mo.App. S.D.2009). The driver may request a post-revocation hearing in the county where the arrest occurred. § 577.041.4.

      . Corporal Slaughter testified that he transposed the times and the report should have stated “2232” hours and "2235” hours. We find this explanation plausible.

      . In White, the Supreme Court of Missouri overruled prior decisions to the extent those decisions held section 302.535 created a presumption of validity of the director’s evidence, placed a burden on the driver to produce evidence that controverts or contradicts the director's evidence for the trial court to disbelieve the evidence on a contested issue, or required written factual findings absent a request by a party. 321 S.W.3d at 307-08. The holding in White is equally applicable to section 577.041 cases as both statutes involve similar administrative procedures.

      . "Reasonable grounds” is virtually synonymous with "probable cause.” Edmisten v. Director of Revenue, 92 S.W.3d 270, 273 (Mo.App. W.D.2002).

      . All rule references are to Missouri Court Rules (2009).


text:
    FIRST STUDENT, INC., Plaintiff/Respondent, v. Edna COLEMAN, Defendant/Appellant.
    No. ED 94359.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 2, 2010.
    Raymond Howard, St. Louis, MO, for appellant.
    Thomas J. Magee, Meg L. Fowler, He-plerbroom LLC, St. Louis, MO, for respondent.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Defendant appeals from a judgment setting aside a default judgment she had obtained against plaintiff. The judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

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 pursuant to Rule 84.16(b).


author: ROY L. RICHTER, Chief Judge.

text:
    Darryl MULDROW, Claimant/Appellant, v. LOU FUSZ MOTOR COMPANY and Division of Employment Security, Respondents.
    No. ED 95451.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 9, 2010.

      Darryl Muldrow, St. Louis, MO, for Appellant.
    Michael Pritchett, Jefferson city, MO, for Respondent.
    Lou Fusz Motor Company, St. Louis, MO, pro se.
   ROY L. RICHTER, Chief Judge.

Darryl Muldrow (Claimant) has filed a notice of appeal from the Labor and Industrial Relations Commission’s (Commission) decision denying his application for unemployment benefits. We dismiss the appeal.

A deputy and the Appeals Tribunal of the Division of Employment Security (Division) concluded that Claimant was disqualified from receiving unemployment benefits. Claimant filed an application for review with the Commission, which issued a decision affirming the Appeals Tribunal. Claimant filed a notice of appeal to this Court. The Division has filed a motion to dismiss Claimant’s appeal, asserting it is untimely. Claimant has not filed a response to the motion.

Section 288.210, RSMo 2000, of the unemployment statutes requires an aggrieved party decision becoming final. The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000.

Here, the Commission mailed its decision to Claimant on July 28, 2010. Therefore, the notice of appeal to this Court was due on or before August 27, 2010. Sections 288.200.2, 288.210. Claimant mailed his notice of appeal to the Commission on September 1, 2010. Under section 288.240, RSMo 2000, any notice of appeal is deemed filed “as of the date endorsed by the United States post office on the envelope....” The postmark on Claimant’s envelope was September 1, 2010. As a result, Claimant’s notice of appeal is untimely-

The right of appeal is purely statutory and where statutes do not give such a right, no appeal exists. Labrier v. Anheuser Ford, Inc., 621 S.W.2d 51, 53 (Mo. banc 1981). The unemployment statutes do not provide for the late filing of the notice of appeal and do not recognize any exceptions for filing out of time. McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). As a result, we must dismiss the appeal.

The Division’s motion to dismiss is granted. The appeal is dismissed.

KURT S. ODENWALD, and GARY M. GAERTNER, JR., JJ., concur.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Taron Lydell CRAWFORD, Appellant.
    No. WD 71453.
    Missouri Court of Appeals, Western District.
    Nov. 23, 2010.
    Ellen H. Flottman, Assistant State Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.

      Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

Taron Crawford appeals his conviction for murder in the second degree resulting from a jury trial in the Circuit Court of Boone County. Crawford argues that the trial court committed reversible error in excluding part of the expert witness testimony of Crawford’s expert. We disagree and affirm the judgment below in this per curiam order. Rule 80.25(b).


text:
    STATE of Missouri, Respondent, v. Maurice PENNY, Appellant.
    No. WD 71505.
    Missouri Court of Appeals, Western District.
    Nov. 23, 2010.
    Kent Denzel, Assistant State Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Mary H. Moore, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

Maurice Penny appeals his conviction of robbery in the first degree, section 569.020, RSMo 2000, in the Circuit Court of Boone County, in which he was sentenced to eighteen years imprisonment. In his sole point on appeal, Penny argues the trial court erred in failing to sua sponte instruct the jury to disregard the State’s allegedly improper, though not objected to, closing argument. We affirm in this per curiam order and have provided the parties a memorandum of law explaining our ruling today. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Bruce D. JAMES, Appellant.
    No. WD 71759.
    Missouri Court of Appeals, Western District.
    Nov. 23, 2010.
    Ellen H. Flottman, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.

      Before JAMES EDWARD WELSH, P.J., MARK D. PFEIFFER, and KAREN KING MITCHELL, JJ.
   ORDER

PER CURIAM:

Bruce D. James appeals the circuit court’s judgment convicting him of felonious restraint. We affirm. Rule 30.25(b).


text:
    Buford K. CASEBOLT, D.D.S., Appellant, v. MISSOURI DENTAL BOARD, Respondent.
    No. WD 72213.
    Missouri Court of Appeals, Western District.
    Nov. 23, 2010.
    Jamie J. Cox, Jefferson City, MO, for appellant.
    Loretta L. Schouten, Columbia, MO, for respondent.
    Division One: JAMES M. SMART, JR., P.J., MARK PFEIFFER, and CYNTHIA L. MARTIN, JJ.
   ORDER

PER CURIAM:

Buford Casebolt appeals the judgment of the Missouri Dental Board revoking his dental license for at least one year. He makes numerous arguments on appeal, including claims pertaining to sufficiency of evidence, due process, equal protection, and sufficiency of findings. The judgment is affirmed. Rule 84.16(b).


author: GARY D. WITT, Judge. VICTOR C. HOWARD, Presiding Judge,

text:
    Timothy HOLLINGSHEAD, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71775.
    Missouri Court of Appeals, Western District.
    Nov. 23, 2010.

      Susan L. Hogan, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Mary H. Moore, Jefferson City, MO, for respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

Timothy Hollingshead (“Hollingshead”) appeals the motion court’s denial of his Rule 24.035 motion without an evidentia-ry hearing. For the reasons set forth herein, the cause is remanded to the motion court.

Factual Background

Hollingshead pled guilty to one count of murder in the second degree, Section 565.021, pursuant to a plea agreement in exchange for a “lid” of twenty-one years in prison.

In his plea colloquy before the trial court, Hollingshead acknowledged that he understood the terms of the agreement and that his possible maximum sentence was twenty-one years. He indicated that he understood he was giving up his rights to a jury trial and assured the court that his decision was not the result of force, threats, or promises, other than the plea agreement itself. Hollingshead established the factual basis of his guilty plea and that it was likely that a jury would find that he intended to cause serious physical injury to the decedent. He also stated he was satisfied with his legal representation.

The court accepted Hollingshead’s guilty plea and ordered a sentencing assessment report. Hollingshead was sentenced to twenty-one years in prison. On January 27, 2009, Hollingshead filed a timely pro se Rule 24.035 Motion to Vacate, Set Aside, or Correct Judgment and Sentence. On September 30, 2009, appointed post-conviction counsel timely filed an amended motion.

The amended post-conviction motion alleged that Hollingshead’s guilty plea was not entered knowingly, intelligently, and voluntarily, because plea counsel persuaded him that he would receive no more than fifteen years in prison.

On October 22, 2009, the motion court denied Hollingshead’s post-conviction relief motion. The judgment read in its entirety:

Pending before the Court is Movant Timothy Hollingshead’s Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Respondent State of Missouri’s Response. After a thorough review of the pleadings and applicable case law, the Court finds no factual or legal basis for granting relief.
Accordingly, IT IS HEREBY ORDERED that Movant’s Amended Motion to Vacate, Set Aside, or Correct

Judgment and Sentence is DENIED. Hollingshead now appeals.

Analysis

In his sole Point on Appeal, Holl-ingshead argues the motion court erred when it denied his Rule 24.035 motion for post-conviction relief without issuing findings of fact and conclusions of law that comply with Rule 24.035(j).

Missouri Supreme Court Rule 24.035(j) requires the motion court to “issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” “Our review of a motion court’s decision on a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the court’s findings of fact and conclusions of law are clearly erroneous.” Johnson v. State, 210 S.W.3d 427, 431 (Mo.App. S.D.2006); Rule 24.035(k). “This standard of review, however, presupposes that the motion court earned out its obligation to ‘issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.’ ” Johnson, 210 S.W.3d at 431 (quoting Rule 24.035(j)).

A denial of a post-conviction motion supported neither by factual findings nor by legal explanation provides nothing for appellate review. Supplying the necessary findings and conclusions by implication would constitute an improper de novo review on appeal. Failure to issue findings and conclusions as contemplated by Rule [24.035(j) ] mandates reversal and remand.

Brown v. State, 810 S.W.2d 716, 718 (Mo.App. W.D.1991) (citations omitted).

This court considered an almost identical issue in Gaddis v. State, 121 S.W.3d 308, 309 (Mo.App. W.D.2003). In Gaddis, Gaddis pled guilty to one count of assault in the first degree and one count of armed criminal action. Id. Gaddis then filed a pro se Rule 24.035 motion, subsequently amended by counsel, which alleged his plea counsel was ineffective because counsel assured Gaddis he would receive ten year sentences on each count if he pled guilty. Id. at 309-10. In that case, without holding an evidentiary hearing, the motion court entered the following order:

NOW on this 25 day of Sept, 2002, after a review of the pleadings on file and being fully advise [sic] in the premises, this Court adopts the State’s Findings of Fact and Conclusions of Law and hereby overrules Movant’s Motion to Reconsider, Correct, or Amend Judgment and is dismissed without a hearing.
IT IS SO ORDERED

Id. at 810.

This court, considering the sufficiency of that order, held that “[s]ince there were no proposed findings of fact and conclusions of law that could be incorporated into the September 25, 2002, order, and the motion court did not adopt the State’s motion to dismiss, the order did not meet the requirements of Rule 24.035(j).” Id. at 312. This court reversed and remanded the case to the motion court so that it could enter proper findings of fact and conclusions of law required by Rule 24.035(j). Id. at 313.

The substance of the motion court’s September 25, 2002 order in Gaddis and the motion court’s order in the case at bar are identical, containing only a bare denial of the motion without any legal or factual basis contained in the record for appellate review. As in Gaddis, the motion court here failed to comply with the mandate of Rule 24.035.

The failure of the motion court to comply with Rule 24.035 does not always require reversal. Id. at 312. Missouri courts have identified a total of five exceptions to the general rule that failure to comply with Rule 24.035 warrants reversal. Id. at 312-13. The Supreme Court of Missouri has identified two such situations: “(1) when the only issue before the court is one of law, findings of fact are not required, if conclusions of law are made;” and “(2) where the motion court conducted a hearing on a post-conviction motion and no substantial evidence was presented to support the allegation upon which the court failed to make findings.” Id. at 312 (citing Barry v. State, 850 S.W.2d 348, 350 (Mo. banc 1993)). Exception (1) does not apply here because no conclusions of law were made, and exception (2) is not applicable because no evidentiary hearing was held.

The Eastern District of this court has elaborated on three additional exceptions recognized by this court where:

(1) the court failed to “issue a proper conclusion of law on an isolated issue” and it is clear that the movant is entitled to no relief, as a matter of law, and will suffer no prejudice if a remand is denied; (2) there were issues “that were not properly raised or are not cognizable in a post-conviction motion;” and (3) “the motion itself was insufficient.”

Id. at 313 (quoting Bowens v. State, 18 S.W.3d 118, 120 (Mo.App. E.D.2000)). As in Gaddis, none of the above exceptions are applicable. Here, the motion was sufficient, raised cognizable issues, and no findings of fact or conclusions of law were made.

Conclusion

Because the motion court failed to issue proper findings of fact and conclusions of law adjudicating Hollingshead’s post-conviction motion, the judgment is reversed and remanded for the entry of findings of fact and conclusions of law as required by Rule 24.035(j).

NEWTON, Judge, concurs.

HOWARD, Presiding Judge, dissents in separate opinion.

VICTOR C. HOWARD, Presiding Judge,

dissenting.

Before considering the merits of a point on appeal, we must first determine, sua sponte, whether the issue has been preserved for appellate review. Pope v. Pope, 179 S.W.3d 442, 450 (Mo.App. W.D.2005). This applies where a party fails to file a motion to amend pursuant to Rule 78.07(c) but later complains about the form or language of a judgment. See Crow v. Crow, 300 S.W.3d 561, 564 (Mo.App. E.D.2009). Hollingshead did not preserve his only claim of error. Accordingly, I would dismiss his appeal.

A motion court must issue findings of fact and conclusions of law on all issues presented in a motion filed under Rule 24.035 or Rule 29.15. This is required by statute, section 547.360.10, and Supreme Court rule, 24.035(j) and 29.15(j). Holl-ingshead’s only complaint is that the motion court erred when it denied his Rule 24.035 motion without issuing adequate findings and conclusions. However, “[i]n all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings,” must be brought to the motion court’s attention in a motion to amend the judgment in order to be preserved for appellate review. Rule 78.07(c).

The purpose of Rule 78.07(c) is to ensure that complaints about the form and language of judgments are brought to the attention of the trial court where they can be easily corrected, alleviating needless appeals, reversals, and rehearings. See Wilson-Trice v. Trice, 191 S.W.3d 70, 72 (Mo.App. W.D.2006). This rule has been applied to dismiss a variety of allegations of error on the basis that they were not preserved for appellate review due to a failure to raise the issue in a Rule 78.07(c) motion to amend the judgment. See, e.g., Crow, 300 S.W.3d at 566 (failure to make findings regarding child support amount under Rule 88.01); Stuart v. Ford, 292 S.W.3d 508, 517 (Mo.App. S.D.2009) (lack of finding regarding party’s current ability to pay judgment of contempt); In re M.D.D., Jr., 219 S.W.3d 873, 875 (Mo.App. S.D.2007) (failure to make statutorily required findings regarding termination of parental rights); Wilson-Trice, 191 S.W.3d at 72 (failure to make statutorily required findings to support custody award).

Motions filed pursuant to Rules 29.15 and 24.035 are governed by the rules of civil procedure insofar as applicable. Rule 29.15(a); Rule 24.035(a). If a civil rule hinders the purposes of the post-conviction rules, it does not apply. Thomas v. State, 808 S.W.2d 364, 366 (Mo. banc 1991). If the rule enhances those purposes, or is of neutral consequence, it applies. Id. Therefore, the question is whether Rule 78.07(c) comports with the purposes of Rules 29.15 and 24.035 so that it may apply to post-conviction proceedings.

“It is clear that the intent of the framers of Rule 29.15 was to prevent delay, end the use of successive motions, and to discourage ‘sandbagging’ by the movant.” Rohwer v. State, 791 S.W.2d 741, 744 (Mo.App. W.D.1990). The common purpose of Rules 24.035 and 29.15 is “to adjudicate claims concerning the validity of the trial court’s jurisdiction and the legality of the conviction or sentence of the defendant.” Thomas, 808 S.W.2d at 366. The rules have an additional purpose: to avoid “delay in the processing of prisoners[’] claims and prevent the litigation of stale claims.” Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). “To further that purpose, the new rules contain strictly enforced time constraints which, if not followed, procedurally bar consideration of a movant’s claims.” Thomas, 808 S.W.2d at 366. These time limits place a heightened responsibility on a movant, his counsel and the courts to timely litigate claims. Rohwer, 791 S.W.2d at 743.

Given the nature and purpose of post-conviction proceedings, a number of civil rules have been deemed not to apply to post-conviction motions in that those civil rules would hinder the purposes underlying Rules 29.15 and 24.035. See, e.g., Thomas, 808 S.W.2d at 367 (holding that Rule 51.05 permitting a change of judge in a civil action does not apply to post-conviction motions for relief because, in part, the rule would build “in the very delay Rules 24.035 and 29.15 are designed to eliminate”); State v. McMillin, 783 S.W.2d 82, 90 (Mo. banc 1990) (holding that Rule 67.01 permitting the re-filing of a civil case after dismissal without prejudice does not apply because it conflicts with the prohibition against the filing of successive post-conviction claims); Rohwer, 791 S.W.2d at 744 (holding that Rule 55.33(b) providing that issues not raised by the pleadings, but tried by implied consent, are treated as raised in the pleadings is inapplicable in that it is inconsistent with post-conviction rules that clearly state that “a movant who fails to properly assert all grounds for relief in timely filed motions, forfeits any remedy available for additional claims”).

In contrast, Rule 78.07(c) enhances the purposes of Rules 24.035 and 29.15. The interplay between Rule 78.07(c) and Rules 24.035 and 29.15 is more akin to the circumstances in Thomas v. State, 180 S.W.3d 50 (Mo.App. S.D.2005). In that case, the court held that Rule 75.01, which gives the trial court control over a judgment for thirty days after its entry, applied to post-conviction proceedings to allow review of the motion court’s ruling before it becomes final. Id. at 54. Similarly, Rule 78.07(c) aids the purposes underlying post-conviction proceedings in that it affords the motion court the opportunity to expeditiously make corrections, amendments, and modifications to its judgment. Therefore, Rule 78.07(c) should apply to post-conviction proceedings.

Where Hollingshead failed to file a motion to amend the judgment pursuant to Rule 78.07(c), he has preserved nothing for review, and his appeal should be dismissed.

      . All rule citations are to the Missouri Supreme Court Rules (2010), unless otherwise indicated.

      . All statutory citations are to RSMo 2000, as updated through the 2009 Cumulative Supplement, unless otherwise indicated.

      . After receiving this first order, Gaddis filed a Motion for Reconsideration, which advised the motion court that the State’s motion did not contain adequate findings of fact or conclusions of law that could be adopted by the motion court. Gaddis, 121 S.W.3d at 310. The motion court issued a second order adopting the State’s findings of fact and conclusions of law but erred by issuing an order overruling Gaddis’ Motion for Reconsideration without ruling on his post-conviction motion. Id. at 312. However, for current purposes, only the first motion of September 25, 2002, is relevant.

      . The dissenting opinion makes a persuasive argument concerning the application of Rule 78.07(c) to foreclose Hollingshead's claim of error. We nevertheless decline to rely on that Rule as the basis for decision in this appeal. The State did not argue that Hollingshead failed to preserve his current claim by failing to file a Rule 78.07(c) motion. Because Rule 24.035 provides that, ”[t]he procedure to be followed for motions filed pursuant to this Rule 24.035 is governed by the rules of civil procedure insofar as applicable," we believe the applicability of Rule 78.07(c) in post-conviction proceedings is better resolved in a case in which the issue has been the subject of a full adversarial presentation.

      . Additionally, this court has previously noted the applicability of Rule 78.07(c) to post-conviction cases. See Wills v. State, 321 S.W.3d 375, 387 n. 7 (Mo.App. W.D.2010).