Kerry Brooks, Movant/Appellant v. State of Missouri, Respondent/Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: Kerry Brooks, Movant/Appellant v. State of Missouri, Respondent/Respondent. Case Number: 27682 Handdown Date: 01/31/2007 Appeal From: Circuit Court of Greene County, Hon. Calvin Holden Counsel for Appellant: Rosalynn Koch Counsel for Respondent: Robert J. Bartholomew Opinion Summary: None Citation: Opinion Author: Gary W. Lynch, Judge Opinion Vote: APPEAL DISMISSED. Bates, P.J./C.J., and Garrison, J., concur. Opinion: Kerry Brooks ("Movant") appeals the motion court's denial of his Rule 24.035(FN1) motion for post-conviction relief. Because we find there is no final judgment in the underlying criminal case that Movant could contest in a post- conviction motion, we dismiss his appeal for lack of jurisdiction. Movant was charged as a prior and persistent offender with assault of a law enforcement officer and armed criminal action. Stemming from the same incident giving rise to these charges, Movant also faced federal charges. Pursuant to a plea agreement, Movant entered an Alford plea(FN2) to the assault charge, and the State dismissed the armed criminal action charge. The terms of the plea agreement provided that the sentence imposed by the trial court was not to exceed the sentence he received on a pending federal charge, it was to run concurrent with the federal sentence, and Movant was to serve his sentence on the state charge in federal custody under his federal

sentence. The trial court sentenced Movant in accordance with the plea agreement, stating that it "will furlough [Movant] to the Federal system for [Movant] to do [his] time in the Federal sentence." After sentencing, through some unexplained error, Movant was transported to the Missouri Department of Corrections to begin serving his state sentence. The U.S. Bureau of Prisons subsequently designated the Missouri Department of Corrections as the place where Movant was to serve his federal sentence. Movant contacted his trial counsel and complained about serving his sentence in state custody instead of federal custody. Trial counsel advised him to immediately file a pro se motion for post-conviction relief. Movant did so, alleging that his incarceration in the Missouri Department of Corrections violated the terms of his plea agreement. Motion counsel was appointed for Movant and filed an amended Rule 24.035 motion. In addition to claiming that Movant's incarceration in the Missouri Department of Corrections violated the plea agreement, the amended motion also included claims asking that the judgment be vacated because Movant had involuntarily and unwillingly pleaded guilty. An evidentiary hearing was held on the amended motion, and on March 29, 2006, the motion court issued its order granting relief on Movant's claim that he was deprived of the benefit of his plea agreement. All other claims were denied. Accordingly, the motion court vacated Movant's previously entered sentence and ordered that Movant be resentenced in accordance with the terms of the original plea agreement. Before resentencing occurred, Movant filed his notice of appeal. On appeal, Movant claims the Motion court clearly erred in denying his Rule 24.035 motion to set aside the judgment because his guilty plea was involuntarily and unknowingly made. The factual scenario in the case at bar is essentially the same as that before this Court in Barringer v. State, 12 S.W.3d 765 (Mo.App. 2000). The motion court in Barringer ordered the movant's sentencing set aside and the case transferred to a different judge for resentencing. Before resentencing occurred, the movant appealed. This Court stated: Movant did not wait for resentencing to occur before filing this appeal. Until he was resentenced, there was no final judgment that Movant could contest in a post-conviction action. . . . Once a final judgment was entered and Movant was resentenced, the judgment could have been . . . attacked through a Rule 24.035 motion. The motion court was entitled to rule on that motion before appeal to this court. Accordingly, Movant's appeal must be dismissed for lack of jurisdiction. Barringer, 12 S.W.3d at 767 (internal citations omitted). In the instant case, we issued an order directing the parties to show cause why this case should not be dismissed for lack of jurisdiction, in light of Barringer. In response, Movant concedes that under Barringer "the cause should be dismissed." The State responded that "although the circumstances in the present case appear to be almost identical to those in Barringer," it can be distinguished. The State claims that all of the movant's claims in Barringer related to his

sentencing, while in this case Movant's claims challenge his plea of guilty in addition to his sentencing. This claimed distinction is without merit, because the movant in Barringer also "sought to vacate both his pleas of guilty and his sentence." Id. at 766. Nothing in the parties' suggestions prompts us to reconsider our decision in Barringer. Therefore, because there is no final judgment in the underlying criminal case that Movant could contest in a post-conviction action, this court lacks jurisdiction to entertain this appeal. The appeal is dismissed. Footnotes: FN1.All references to rules are to Missouri Court Rules (2006) unless otherwise indicated. FN2.An Alford plea allows a defendant to plead guilty to a charged offense and accept criminal penalty even if he or she is unwilling or unable to admit to committing the acts constituting the offense. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167 (1970). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.