Court of Appeals of Missouri, Southern District, Second Division
From The Circuit Court of Christian County Honorable Laura J.
E. SCOTT, J.
agreed and been ordered to pay restitution as part of his
plea deal, Appellant ("Movant") now seeks to evade
that obligation while keeping his plea otherwise intact. His
first theory and the reasons it fails track those in
today's companion opinion, State v. Borneman,
SD35503, which finds that any error was invited by Movant and
waived by his knowing and voluntary guilty plea. Movant's
second theory - that restitution contradicts the
orally-pronounced sentence - is refuted by the record. We
is a persistent felony offender whose convictions date back
to 1988. After a 2013 parole, he wrote bad checks and stole
in at least four counties, leading to charges and his guilty
pleas in each. In Christian County, Movant agreed to pay
$3, 909.87 restitution and plead guilty to four felonies in
exchange for the state recommending eight-year caps
concurrent with each other and with any other existing
plea hearing, Movant acknowledged the plea agreement's
terms and that he was pleading guilty freely and voluntarily
because he was guilty as charged. The court accepted the plea
after making a thorough Rule 24.02 record, and at a later
hearing, sentenced Movant according to his plea agreement -
eight years on each count, with the sentences to run
concurrently, and to pay restitution.
timely sought Rule 24.035 relief,  which the motion court (also
previously the sentencing court) denied after a hearing.
Movant appeals that denial, raising two points.
reject Movant's request to strike his agreed restitution
obligation "while leaving the balance of his plea
intact" for the same reasons as in SD35503. As we noted
there, a guilty plea waives "all constitutional and
statutory claims except jurisdictional defects and claims
that the guilty plea was not made knowingly, voluntarily, and
intelligently." Stanley v. State, 420 S.W.3d
532, 544 (Mo. banc 2014). See Scheider v. State, No.
SD35415, slip op. at 3 (Mo.App. February 11, 2019)(by
including restitution in a negotiated plea deal, movant
invited any judicial error in ordering same). Point 1 does
not raise a jurisdictional claim or charge that Movant's
plea was involuntary or unknowing, so Movant's guilty
plea waived this claim of error.
addition, it is axiomatic that a defendant cannot take
advantage of self-invited error. State v. Bolden,
371 S.W.3d 802, 806 (Mo. banc 2012). This principle
foreclosed relief in SD35503 and does so here as
well. Point 1 fails.
trial court orally sentenced Movant as follows: "So
it's the order and judgment of the Court that you will be
sentenced to the Department of Corrections for a term of
eight years. You will receive credit for time served. And
that will run concurrently with any other existing
written judgment entered the same day added that Movant
"will be responsible for restitution under
559.105." Point 2 claims this provision is ineffective
because the oral sentence did not mention restitution.
the orally-pronounced sentence is silent on a particular
issue, "nothing prevents an appellate court from
examining the entire record to determine if the oral sentence
can be unambiguously ascertained." Johnson v.
State, 938 S.W.2d 264, 265 (Mo. banc 1997). Otherwise,
"[e]ither the sentencing judge pronounces exactly the
right words at exactly the right time, or the defendant
receives a windfall reduction in sentencing, despite the
court's clear intent to the contrary." Id.
This means "[w]here, ...