Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hewitt v. State

Court of Appeals of Missouri, Southern District, Second Division

May 15, 2018

JOSHUA DANIEL HEWITT, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY Honorable Scott T. Horman, Associate Circuit Judge

          WILLIAM W. FRANCIS, JR., J.

         Joshua Daniel Hewitt ("Hewitt") appeals from a judgment of the motion court denying his amended Rule 24.035[1] motion to set aside his convictions of tampering with a motor vehicle and forgery. Because the motion court failed to comply with this Court's opinion and mandate, pursuant to Hewitt v. State, 518 S.W.3d 227 (Mo.App. S.D. 2017), [2] we reverse and remand with directions.

         This Court issued its opinion in Hewitt on February 14, 2017. We observed that Hewitt's amended motion was not timely filed, and that the motion court failed to conduct an independent abandonment inquiry, pursuant to Moore v. State, 458 S.W.3d 822, 827 (Mo. banc 2015). We reversed the motion court's judgment, and remanded "to the motion court with directions that it conduct an independent inquiry into whether [Hewitt] was abandoned by any or all of his appointed counsels and for further proceedings consistent with the outcome of those inquiries." Hewitt, 518 S.W.3d at 232 (emphasis added).

         In that opinion, this Court indicated the manner of those "further proceedings, " as applicable, based on the outcome of the motion court's independent abandonment inquiry:

[NO ABANDONMENT:] If any delay in the filing of an amended motion or statement in lieu thereof is attributable to the negligence or intentional conduct of the movant, late filing of an amended motion will not be permitted, and movant is entitled to no relief other than that which may be afforded upon the pro se motion[.]
[ABANDONMENT:] If a court finds that a movant has been abandoned, then the proper remedy is to put the movant in the place where the movant would have been if the abandonment had not occurred. The only way to restore the motion court and parties to the position Rule 24.035(e) intends for them is for the motion court to appoint new counsel and allow additional time for this counsel to perform the duties required under the rule.

Id. (internal quotations and citations omitted) (emphasis added).

Mandate issued on March 24, 2017. In relevant part, the mandate stated that
the judgment rendered by the Circuit Court of Scott County is reversed, and that said cause is remanded to the said Circuit Court of Scott County with directions to the motion court that it conduct an independent inquiry into whether [Hewitt] was abandoned by any or all of his appointed counsels and for further proceedings consistent with the outcomes of those inquiries, and consistent with the opinion of this Court herein delivered[.]

(Emphasis added).

         On August 4, 2017, the motion court conducted an abandonment inquiry. That same day, the motion court issued its "Order After Abandonment Inquiry, " which found that "Hewitt was abandoned by post-conviction counsel[s.]" However, in contravention to this Court's opinion and mandate, the motion court did not "appoint new counsel and allow additional time for this counsel to perform the duties required under [Rule 24.035]." Hewitt, 518 S.W.3d at 232 (internal quotation and citation omitted). Instead, the motion court ordered that its "Judgment and Findings of Fact and Conclusions of Law issued on February 26, 2016 remain in effect and the Court reissues those Findings of Fact and Conclusions of Law."

         "The scope of the trial court's authority on remand is defined by the appellate court's mandate, and the [motion] court must [act] in accord with our mandate and opinion." Welman v. Parker, 391 S.W.3d 477, 483 (Mo.App. S.D. 2013) (internal quotation and citation omitted).

The mandate serves the purpose of communicating the judgment to the lower court, and the opinion, which is a part thereof, serves in an interpretative function. It is well settled that the mandate is not to be read and applied in a vacuum. The opinion is part ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.