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06/28/83 KENNETH LEE HATTEMAR v. STATE MISSOURI

June 28, 1983

KENNETH LEE HATTEMAR, APPELLANT,
v.
STATE OF MISSOURI, RESPONDENT.



From the Circuit Court of St. Charles County Criminal Appeal from Motion Under Rule 27.26 (Post Conviction Relief) Judge Fred Rush Reversed and Remanded With Directions

Before Crandall, P.j., Reinhard, Crist, JJ.

The opinion of the court was delivered by: Crist

Appeal from a denial of a Rule 27.26 motion. We reverse and remand with directions.

Movant pled guilty and was convicted of selling a controlled substance on August 3, 1981. Movant was sentenced to ten years imprisonment. Testimony adduced at the guilty plea hearing revealed the existence of a plea bargain agreement between movant and the state. The state recommended the minimum sentence of five years and stated it would not oppose any suspended imposition or execution of sentence.

The relevant portion of the proceeding occurred as follows:

Q. Mr. Hattemar, the Court, at this time, is going to indicate to you that if it accepts your plea of guilty that it is not necessarily going to be bound by the recommendation of the prosecuting attorney's office and that the Disposition to be made of this may be less favorable to you than the recommendation on behalf of the prosecuting attorney's office (emphasis ours)

Because of that, I am going to, at this time, give you the opportunity to withdraw your plea of guilty thus far made. Do you want to consult with your attorney for a few minutes?

A. Yes, sir.

Q. Mr. Hattemar, have you have a adequate opportunity to consult with your attorney, Mr. Smith?

A. Yes sir.

Q. And is it your desire to withdraw your plea of guilty or to proceed to enter a plea of guilty to this offense, sir?

A. I want to enter a plea of guilty.

Q. And you understand that the Court is not going to be bound at all by the recommendation on behalf of the state? A. Yes, sir.

Q. Do you understand that this is the last opportunity the Court will give you to withdraw your plea of ...


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