Court of Appeals of Missouri, Eastern District, Second Division
ANDREW M. MARTY, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Jefferson County Honorable Darrell
M. Hess, Presiding Judge
an appeal from the denial of a post-conviction relief motion
on the class C felony of stealing by the motion court. We
dismiss this appeal for lack of jurisdiction.
Andrew Marty ("Marty") appeals the motion
court's denial, without an evidentiary hearing, of his
amended motion for post-conviction relief under Mo. Sup. Ct.
Rule 24.035. On May 28, 2013, Marty pleaded guilty to
the class C felony of stealing under § 570.030.3
for the theft of an Apple iPod Touch, an Apple iPhone, and a
PlayStation, valued at over $500. Marty contends the motion
court clearly erred in denying his motion for post-conviction
relief, claiming the suspended execution sentence entered on
July 29, 2013 exceeded the maximum authorized by law under
the Supreme Court of Missouri's holding in State v.
Bazell, 497 S.W.3d 263 (Mo. banc 2016).
28, 2013, Marty pleaded guilty in three cases, facing two
separate charges of the class C felony of stealing and one
for tampering. In this case, the State alleged on October 17,
2012, Marty took an Apple iPod Touch, an Apple iPhone, and a
PlayStation, valued at over $500, from a victim's pickup
truck. Marty was sentenced to five years of imprisonment in
the Missouri Department of Corrections to run concurrently.
The court suspended execution of Marty's sentences and
placed him on five years of supervised probation.
January 4, 2017, the court discharged Marty from probation on
both felony stealing charges, referencing State v.
Bazell, 497 S.W.3d 263 (Mo. banc 2016). In the same
hearing, the trial court revoked Marty's probation in the
tampering case, ordering the five-year sentence executed.
Marty was delivered to MDOC on his sentence for tampering
alone on January 12, 2017 to begin serving his sentence
on the tampering charge. In both felony stealing cases, he
timely filed his pro-se motion, which was timely
amended by Motion Counsel on July 24, 2017. Marty's
Motion counsel raised the same argument in both felony
stealing cases for post-conviction review, alleging five-year
sentences for stealing under § 570.030.3 RSMo 2009
exceeded the maximum allowed by law under State v.
Bazell, 497 S.W.3d 263 (Mo. banc 2016).
13, 2018, in both felony stealing cases, the Court denied
Marty's request for resentencing, noting the Court of
Appeals has determined such relief is not available under
Rule 24.035 for pre-Bazell sentences, citing
Watson v. State, 545 S.W.3d 909 (Mo. App. W.D.
Analysis of Jurisdiction
outset of every case, we assess our own jurisdiction in
addition to that of the trial court below, because a decision
without jurisdiction is a legal nullity. Hussmann Corp.
v. UQM Elecs. Inc., 172 S.W.3d 918, 920 (Mo. App. E.D.
2005). An appellate court must always determine whether it
has the authority to address the merits of an appeal, with
our jurisdiction deriving from proper exercise of
jurisdiction of the court below. Viehweg v. Mello, 8
S.W.3d 187, 188 (Mo. App. E.D. 1999).
24.035(b) provides that where a defendant does not directly
appeal the judgment, the defendant must file the Rule 24.035
motion within ninety days of the date the defendant is
delivered to the Department of Corrections. Here, Marty was
never delivered to the Department of Corrections on his
conviction of felony stealing. Instead, his probation was
discharged, which terminated the trial court's
jurisdiction. Norfolk v. State, 200 S.W.3d 36, 38
(Mo. App. W.D. 2006). The same is true in his other pending
appeal for post-conviction relief from his discharged
probation for felony stealing on identical briefing.
short, Marty was incarcerated on an unrelated conviction; he
had not been imprisoned on the conviction underlying this
post-conviction claim. In such circumstances, the appropriate
disposition is dismissal. See Hopkins v. State, 802
S.W.2d 956, 958 (Mo.App. W.D. 1991).
reviewing the record on appeal and the appellate briefs of
the parties, we dismiss ...