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10/19/93 STATE MISSOURI v. PABLO GOMEZ

October 19, 1993

STATE OF MISSOURI, RESPONDENT,
v.
PABLO GOMEZ, APPELLANT. PABLO GOMEZ, APPELLANT, V. STATE OF MISSOURI, RESPONDENT.



APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY. The Honorable Frank Conley, Judge

Before Ulrich, P.j.; Berrey, J. and Smart, J.

The opinion of the court was delivered by: Ulrich

Pablo Gomez was convicted by a jury of fraudulently stopping payment of a check in violation of Section 570.125 RSMo (1986). Mr. Gomez was sentenced to three years imprisonment. Additionally, Mr. Gomez's post-conviction Rule 29.15 motion was denied. He appeals the judgment of conviction and denial of his Rule 29.15 motion.

Mr. Gomez alleges three points on appeal. He claims that (1) insufficient evidence to support the conviction was presented; (2) the trial court's refusal to allow him to proceed pro se at trial deprived him of his right to counsel and his right to conduct his own defense; and (3) the motion court erred in denying his Rule 29.15 motion because his appointed counsel's refusal or failure to present certain defenses that he desired to pursue constituted denial of his right to effective assistance of counsel.

The judgment of conviction is affirmed. The judgment denying Mr. Gomez's Rule 29.15 motion is affirmed.

FACTS

Viewed in the light most favorable to the verdict, State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992), the evidence at trial established that Mr. Gomez, a resident of St. Louis, was involved in an automobile accident. His vehicle was taken to Perry Legend Collision Repair Center in Columbia ("Perry Legend"). Mr. Gomez's insurance company "totaled" the car and told him it would pay him approximately $6,000.00. Mr. Gomez received a written estimate from an employee of Perry Legend that to repair the vehicle would cost $4,554.89. Mr. Gomez was told that the actual cost of repairing the vehicle could vary from the estimate by as much as $500.00. During his Discussion with Perry Legend, Mr. Gomez disclosed what his insurance company was paying him for the damage sustained by the vehicle.

As Perry Legend began the repairs, more damage was identified by Perry Legend. A representative of Perry Legend contacted Mr. Gomez and told him of the additional damage and that the additional cost of repair would be about $500.00. On several subsequent occasions, additional damage was identified and each time a Perry Legend representative telephoned Mr. Gomez *fn1 and asked for approval to repair the damage for an additional charge. Mr. Gomez approved the additional repairs each time approval was sought, but he filed a complaint with the Better Business Bureau. Perry Legend informed the Better Business Bureau that the increases had been approved beforehand. The final bill was $5,863.21.

Mr. Gomez went to Columbia on Saturday, February 23, 1990. He test drove the car and complained that the radio was not working. A Perry Legend employee explained to Mr. Gomez that the radio was not considered a part of the estimated cost of repair. Mr. Gomez signed an acceptance form, accepting the automobile in its repaired form, and wrote a check to Perry Legend in the amount of the final bill. *fn2 He was informed that Perry Legend "prosecutes" insufficient funds or stopped payment checks which are in violation of Missouri law.

The following Monday, February 26, 1990, Mr. Gomez caused a "stop payment" order to issue on the check he gave Perry Legend. The reason given to the bank was that he was "dissatisfied with the service." Mr. Gomez testified that he stopped payment because he disagreed with the cost of repair increases and because he experienced problems with the repairs. *fn3

Perry Legend contacted Mr. Gomez's wife who stated that she did not want to get "in the middle of it," but she said that she would have Mr. Gomez return the call. Mr. Gomez did not speak with anyone at Perry Legend after he acquired custody of his car.

Mr. Gomez tendered partial remuneration to Perry Legend a second time. On March 1, 1990, the Thursday after stopping payment on his check, Mr. Gomez obtained a certified check for $5,000.00. He mailed that check to Perry Legend from Washington, D.C., on Saturday, March 3, 1990.

Mr. Gomez interrupted the second tendered payment. On March 6 or 7, after returning to St. Louis, Mr. Gomez caused the appropriate bank to stop payment on the certified check, telling the bank that it had been lost. Mr. Gomez testified that he caused the bank to stop payment on the cashier's check because he experienced problems with the car as he drove it back from Washington, D.C., and he had learned that Perry Legend had refused to arbitrate the increased cost of repair.

Mr. Gomez did not contact Perry Legend even after he received a "ten-day letter" from Perry Legend. *fn4 Perry Legend attempted to contact Mr. Gomez at the accounting firm where he had worked as an auditor. The accounting firm informed the Perry Legend representative that Mr. Gomez no longer ...


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