Kimmins v. State

KAROHL, Judge. Movant appeals denial of Rule 24.035 relief without an evidentiary hearing. In accord with a plea agreement movant was sentenced as a prior and persistent offender to two concurrent ten year terms on charges of unlawful possession of a concealable firearm and possession of controlled substance. In addition, these sentences were to be served concurrent with sentences to be imposed on pending charges in the City of St. Louis. The only claim of error is the plea court improperly sentenced movant as a persistent offender because his two prior convictions occurred in a single cause “MAKING IT ONLY ONE CONVICTION SO THE PERSISTENT STATUS WAS INCORRECTLY APPLIED.” Movant’s position is without merit. We find the theory and this appeal frivolous. Rule 84.19. In his pro se motion for relief movant alleges his prior felony convictions were on crimes which occurred on separate dates. Further, at the plea hearing movant agreed “he in fact had pled guilty to 2 or more felonies occurring on different dates and would offer that as evidence of the persistent offender count.” For purposes of determining persistent offender status it is irrelevant that the two prior felonies which occurred on different dates were disposed of in a single proceeding. The record supports a finding by both the plea court and the motion court that movant was a persistent offender. The sentences are not defective and do not violate the laws of this state. We affirm and award respondent, State of Missouri, a judgment against movant for $100 as damages for frivolous appeal. REINHARD, P.J., and GRIMM, J., concur.