Defendant appealed the denial of his motion for post-conviction relief. Defendant pled guilty to DUI offenses in separate counties. One county sentenced him to a prison term suspended in favor of probation pending completion of a “shock treatment” program; the second county also sentenced defendant to a consecutive prison term suspended for probation pending completion of a concurrent 60-day shock treatment program. Defendant was immediately delivered to begin serving his shock treatment on his first sentence. However, no written judgment in the second case was entered for two years, when defendant’s probation was revoked and he was delivered to begin serving his prison sentence. Defendant filed a PCR motion relating to his second conviction, which was rejected. For the first time on appeal, the state argued that defendant’s motion was untimely because he had been delivered to the department for purposes of the second case when he began shock treatment in the first case.
Where the trial court had found defendant’s motion timely without hearing argument, the court vacated and remanded for the trial court to consider whether defendant had been delivered to the department of corrections for
the second conviction when he began his shock treatment for his first conviction or when he was delivered to begin serving a prison sentence following the revocation of probation in the second conviction.
Judgment is vacated and remanded.
Hatmon v. State (MLW No. 79623/Case No. SC99591 – 10 pages) (Supreme Court of Missouri, Wilson, J.) Appealed from circuit court, Dallas County, Henderson, J. (Rosemary E. Percival, Kansas City, for petitioner) (Evan J. Buchheim, Jefferson City, for respondent)